Antonin Scalia

Storyville

Turning every issue into a drama is warping public policy.

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"On February 23, 1994 at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendent, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction. Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die."

—Justice Harry Blackmun, in Callins v. Collins, No. 93-7054, cert. denied, February 22, 1994

"Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us—the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional—for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat….How enviable a quiet death by lethal injection compared with that!"
—Justice Antonin Scalia

Most people are familiar with the stand-up comic's rejoinder when a dog outside the club begins howling: "Everybody's a critic." In the exchange quoted above, Justices Blackmun and Scalia reveal a slight alteration to this quip, one that is among the most significant changes culture has undergone in the last half of the 20th century: These days, everybody's a playwright.

But the plays that everyone is writing are not fiction, or not formally fiction. Justices Blackmun and Scalia are not making anything up in their deadly serious debate. Rather, they are telling the truth, but telling it with a particular style, the dramatic style that fiction makers have long used. Like playwrights, both justices are ordering and honing highly emotional details into a pattern they find satisfying. But unlike playwrights, they are arguing public policy using the lives of very real people.

There is certainly precedent for using stories in public discussion, from the hair-raising tales that prompted the Salem witch trials through Uncle Tom's Cabin. But today, this kind of hyperdramatizing is just about the only way we can conduct our debate about public issues. And we have adopted the dramatic style so thoroughly that we don't recognize it as a style, one among many in which public debate may be conducted. News, both on television and in print, is increasingly driven by dramatic anecdotes full of personal pathos and anguish, righteous justice, and deepest concern. What information there is in modern news is secondary to grand tragedy, fear, social paranoia, tender sympathy, whimsy, lust, and madness.

That is not to suggest that drama does not exist in real life. Bruce Callins was a very real person, and the state of Texas's method of carrying out its death penalty is far from imaginary. Justice Blackmun is just stating real, verifiable facts. But so is Justice Scalia, who accurately relates Callins's crime and the brutal and pitiless rape and murder of that young girl. Each justice's skill at telling the story he finds most convincing demonstrates what becomes of information in the dramatic style. A necessary byproduct of drama, and sometimes its entire purpose, is to influence the way facts are seen. Drama may be used to color facts, and sometimes obscure them. But as we let the pleasure we get from storytelling overshadow what is significant about particular facts, it becomes harder and harder to arrive at a reasonable interpretation of information.

Look what happens to the facts in Callins v. Collins. Justices Blackmun and Scalia are engaged in an argument over something tremendously important: the morality and propriety of the death penalty. But their debate devolves into trading images of anguish and torment. That emotionalism is the centerpiece of the dramatic style. The justices are wrestling with the practical effects of philosophy as it works itself out in public policy, but as the focus turns emotional and personal, philosophy and public policy fade into the distance. We begin to care about (and are meant to care about) the people whose stories are being described.

Once Justice Blackmun invokes the suffering of Bruce Callins, Justice Scalia has to respond in kind. Drama can only be answered by drama. Sufficiently pathetic imagery is like steroids in sports—once one competitor indulges, competition becomes meaningless unless all competitors join in. Scalia cannot adequately answer Blackmun's highly specific imagery simply by referring to the more dispassionate kinds of logic Supreme Court opinions normally utilize: such arguments as the Constitution's apparent acceptance of the death penalty, the reasonably clear intent of the Constitution's drafters, and public opinion polls that show a large majority of Americans continue to support that ultimate punishment. Logic is not where the argument is any more. Blackmun moves the argument away from abstractions and into the arena of the personal, the individual, the pathetic. Scalia can respond only on those terms.

In this case, as in most, the drama is in the details: Each justice summons highly specific facts he believes support the intellectual argument he finds convincing and leaves out or minimizes others. Blackmun's opening would do well in a movie, with its insistently precise focus. ("On February 23, 1994 at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas…") Then, like any competent dramatist, he tweaks our sympathy, in this case narrating the way Callins will be erased from memory while the machine grinds on. ("Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die.") Any fiction writer will recognize that this is good dramatic composition.

Scalia's command of dramatic style is no less astute. He gives us the details at the other end of a crime—provoking us with verbs and adverbs loaded with passion ("ripped by a bullet suddenly and unexpectedly") and facts guaranteed to evoke compassion (the image of the dead man, left bleeding to death on the floor of that tavern). Further, Scalia's use of understatement is a nicely chosen device to heighten the dramatic effect. ("He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us.")

The facts in Callins v. Collins are not particularly unusual in their drama. Just about all cases that make it into the courts involve human injury, conflicting opinions and passions, heated disputes; and the drama is usually most intense in criminal cases. Movies and plays have long exploited the drama inherent in a trial.

Further, the Constitution itself requires a story. No federal court can decide a legal matter unless there is a case or controversy—an actual situation in which some injury has occurred to an identifiable person, or, at the very least, is immediately imminent. Federal courts (and many state courts) cannot issue advisory opinions that merely examine the law as a generalized prospect. Legal issues must be decided based on a given set of facts. Thus, before a court engages in legal analysis, it will most often begin by reciting those facts—the story.

But the Constitution does not require a dramatic story. Callins v. Collins illustrates how the dramatic style becomes something of an end in itself, heightening passions but resolving nothing. Compare the following statement of the facts, which more fairly represents the way a court deals with the facts of a case, to the ones Justices Blackmun and Scalia wrote. It is from Brown v. Board of Education (which consolidated several individual cases), reversing Plessy v. Ferguson:

"In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases, other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called 'separate but equal' doctrine announced by this Court in Plessy v. Ferguson."

This statement of the facts is conspicuously devoid of the suffering the law inflicted on the main characters. The tone is distanced, passive, legalistic. There is no adverbial assistance, no invoking of the human plight the individual victims of such laws endured. The point of view is that of the dispassionate Court.

It is not at all hard to imagine a far more dramatic recitation of the facts. Brown, in fact, has been criticized for its reliance on sociological materials about the psychological effects of segregation on black children. But it is a world apart from the dramatic narratives in Callins. The psychological studies show up in Brown, but the children are still only abstractions. A modern judge could easily have found room to recount some of the details that the 1954 Court subsumed into the phrase, "they have been denied admission to schools attended by white children."

We live in an age that is supersaturated with specifics, with pathos, with drama. We are now entering the second full generation that has grown to adulthood with television's relentless storytelling as its context. We are exposed to more dramas every day than any culture in history, and that familiarity has now become an expectation. We aren't just used to drama, we seldom pay attention to anything else.

But the expectation of drama makes public debate much more difficult. Our craving for stories, our perception of ourselves as audience members, undermines our ability to carry out the far more important function that we all have as democratic decision makers. As citizens who have been given a say in making our own political destiny, we need to know the facts about the issues we and our elected representatives have to decide. But the facts we need—the big picture, the statistical patterns, the relevant general principles, the hard data—are deeply buried in the dramatic stories we crave. The problem is not that we can't separate facts from fiction, the problem is we can't separate facts from drama. And it's hard to get facts these days in any other way.

"If only it had happened somewhere else, in some other country, and we'd just read about it in the papers, one could discuss it quietly, examine the question from all points of view and come to an objective conclusion….But when you're involved yourself, when you suddenly find yourself up against the brutal facts you can't help feeling directly concerned—the shock is too violent for you to stay cool and detached."

—Eugene Ionesco, Rhinoceros

In Quentin Tarantino's film, Reservoir Dogs, one of the characters, a cop, goes undercover to infiltrate a jewelry store robbery some hoods are planning. To pull off the ruse, the cop is coached by an undercover pal to tell a tale from his fabricated life, called the "Commode Story," to help convince the caper's mastermind that he is really a criminal. The cop's coach reinforces the importance of being specific—it is details that matter. The cop rehearses the story over and over, perfecting his performance, going over the minutiae.

Then, in a restaurant, we see him begin telling the tale to the people he is supposed to reassure. His audience is skeptical at first, but they listen. He draws them in as he relates the background of the drug sale, and his sudden need to go to the bathroom which sets the Commode Story in motion. Unknown to him, he relates, four cops and a drug-sniffing police dog are hanging out in the head. When he gets to this complication, the cop's audience, nodding in sympathy, is fully engaged in the story. They know what it's like.

As the undercover cop reaches the part in the story where he enters the bathroom, Tarantino cuts away from the restaurant where the story is being told, and places us in the very scene the cop is relating. Suddenly, we are in the bathroom, where the cops are prattling away; there is the police dog, a beautiful German Shepherd. The undercover cop, who in the story characterizes himself as a run-of-the-mill drug peddler, enters and freezes as he sees the dog. The dog begins barking. Tarantino then cuts back and forth between the cop telling the tale, and the tale the cop is telling.

It's a daring scene in an even more daring movie, but what is so fascinating about it is that it's about the whole process of telling dramatic stories. The undercover cop is manipulating reality to achieve a specific end, and, even as observers, we get caught up in the manipulation. When we first get into the bathroom, there is absolutely no doubt about whose point of view we are there with—a criminal's. That empathetic response is the power of drama—it alters our point of view and expands our picture of the world.

As this century draws to its close, we tell each other more stories—and as a result have more opportunities to view the world through eyes other than our own—than any other culture in history. On any given day, television alone gives us access to many hundreds of stories, either completely enacted (as in movies or fictional television shows), emerging (television news), or some combination (TV news magazines, daytime talk shows, soap operas). And that does not take into account newspapers, magazines, movies, comic books, plays, the ever-increasing events that amass into history, radio dramas, or the gossip we trade at work. The stock of stories available to nearly every one of us has spiraled into almost uncountable numbers.

Our lives are haunted or charmed, depending on your point of view, by old episodes of I Love Lucy and Hill Street Blues and The Twilight Zone, the brooding tragedy of The Godfather, and the whimsy of Tootsie. Every day, the news presses us with the immediacy and inflated importance of its reports, and even when we know we're being conned, we play along because we love the rush of a story. Television is more full of Bearded Ladies and Two-Headed Babies than any circus sideshow ever was: the Zsa Zsa Gabor cop-slapping spectacle; the day Phil Donahue wore a dress, or the guy threw the chair on Geraldo; O.J. Simpson, Tonya and Nancy, Lorena Bobbitt, Heidi Fleiss, Michael Jackson, Lyle and Erik Menendez.

But there is this difference from a circus sideshow: Today we want more than just a peek at the freak—we want to know what the life of a Bearded Lady is like, what the parents of a Two-Headed Baby were feeling when they learned the news. Our constant immersion in the sea of stories has accustomed us to the idea that everyone's point of view counts. Our desire to know the story is one part voyeurism, one part escapism, one part genuine human sympathy, but the result is reshaping us in some important ways. Nancy Kerrigan's pain, as she shouted out, "Why me?" is now part of our national consciousness. We collectively felt her pain, saw the world through her eyes. That fact has consequences.

"Faith slips—and laughs, and rallies—
Blushes, if any see—
Plucks at a twig of Evidence—
And asks a Vane, the way—
Much Gesture, from the pulpit—
Strong Hallelujahs roll—
Narcotics cannot still the Tooth
That nibbles at the soul—"
—Emily Dickinson

The dramatic style gets its vitality from the most brutal fact imaginable in a society that believes in science—the fact that certainty is impossible. Dating back to Aristotle and Plato, Western societies have had an obsession with objective reality and a correlative concern with subjectivity. But specifically since Newton, we have become mad about answers, about certainty, about science. Legal systems, theories of psychology, religions, child-rearing guides, and even artistic doctrines have been devised on "scientific" principles. Ambiguity and uncertainty are the enemy of such systems, guesswork the foe to be conquered. Absolute certitude and predictability are seen as achievable goals.

In the face of human diversity and natural mystery, we have a desperate need to know for sure. This is nowhere more visible than in the law. Virtually every society has a justice system designed to settle unsettled questions, to move us toward a satisfying certainty: Who is responsible for a murder? Who is at fault in an auto accident? Which party in a contract dispute can be held financially liable?

Heightening, then resolving, that uncertainty is one of the hallmarks of drama. In the Los Angeles Times, theater critic Laurie Winer posed this rhetorical question: "If we knew for certain that O.J. Simpson was guilty, would we still hang on to every expression?" It was, in fact, the uncertainty of what was happening in the back seat of the Ford Bronco that transformed an otherwise completely undramatic event into a world-class piece of theatre. While news reporters breathlessly characterized the pursuit up Interstate 5 as a "chase," what was really going on was following, not chasing. One reporter said O.J. was "fleeing," but at about 45 miles per hour on an empty L.A. freeway, he was being driven home with a police escort, not dashing for the border.

What was dramatic about the "chase" was the possibility that Simpson might do something inside the Bronco. All we could see from the helicopter shots was the Bronco's roof, with a few tantalizing glimpses inside the front seat. What was going on in the back? What had gone on in the back? Was he even still alive? Those questions provided the dramatic uncertainty, not the pursuit itself. People were glued to their sets because they wanted to find out how it would end—what would be revealed when the Bronco finally arrived home?

Uncertainty isn't enough to create a satisfying drama, however. We also expect, in the real world as in dramatic fiction, resolution—a climax and denouement. The longing for finality, for resolution in an ambiguous world, for an end, is one of the reasons we go to the incredible expense of having public trials. The public felt cheated when Michael Jackson privately settled the civil charges of child molestation he was faced with. What did the settlement mean? That he was guilty? Innocent but unwilling to go through the public meat grinder a trial would almost certainly have been for the famously reclusive singer? Jackson's settlement deprived us of that final judgment.

Indeed, we are willing to pay an extravagant price for finality. When the juries in the first criminal trial of Lyle and Erik Menendez could not reach a verdict after the months-long trial had ended, L.A.'s district attorney announced with unmistakable firmness that irrespective of the cost, he would mount a retrial, attempt once again to bring the case to a public conclusion. It was not the facts of the murder that were in dispute, but the ultimate question of the boys' guilt or innocence that we wanted finally decided.

Yet even a jury verdict cannot provide certainty. While few jurors have read Ludwig Wittgenstein, every one of them knows by heart his conclusion in the masterful essay, "On Certainty." Certainty is based not on facts, but on our intuition about facts. "Sure evidence," Wittgenstein writes, "is what we accept as sure, it is evidence that we go by in acting surely, acting without any doubt." Because there is always a residue of doubt about the facts, jurors are asked only to determine whether a criminal defendant is guilty beyond a reasonable doubt, not whether he is guilty without any doubt at all.

But as Justice Blackmun noted in Callins v. Collins, some doubts are not obvious. It is those doubts that nag. In other contexts, it might be possible to live with some uncertainty, but when the penalty is death, is any doubt acceptable? The problem is that doubts are always possible. Certainty, if viewed mathematically, is a target like the one Zeno's famous arrow could never reach.

It is that tiny area of uncertainty that the dramatic style exploits. The epidemiological studies may show that breast implants have no relation to connective-tissue disease, for instance. But confronted with a real woman who is really suffering, what reporter will favor the cold statistics? What jury? Facing this reality, breast implant makers threw up their hands at the futile prospect of besting drama with science in court, and settled lawsuits against them for more than $4 billion. As Wittgenstein argued, facts may speak loudly, but they do not really speak for themselves. Even within science, and certainly outside it, analysis is infected by intuition, by subjective beliefs about what facts matter, and about how they matter. Human beliefs can be pushed around, manipulated.

The significance of even the most stable facts can be heightened or undermined by their context. And that is what a trial is about—letting opposing sides orchestrate and fashion facts into one or another point of view. Look at two simple facts. At Nicole Simpson's condominium, police found a bloody glove. At O.J.'s mansion a few minutes away, Detective Mark Fuhrman reported that he found another bloody glove that appears to be a match. At O.J.'s preliminary hearing, these two facts were put into the context of other facts (the oddly parked Bronco, initial blood typing, etc.) to establish a suspicion that O.J. Simpson had been at both sites, and thus could have committed the murders.

But in the weeks following the preliminary hearing, O.J.'s defense put those two incontroverted facts into a very different context, one which supported a conclusion directly contrary to the prosecution's. In his notorious article in The New Yorker, Jeffrey Toobin reported that the defense was planning to rely on other undisputed facts, including an internal police department claim by Fuhrman for early retirement, to show he was racist. In that supercharged context, the defense would argue, the two facts look very different. Fuhrman could have discovered two bloody gloves at Nicole's and secreted one which he then planted at O.J.'s to get revenge on a rich and popular black man.

Both stories leave something out. The prosecution's story ignores, or at least minimizes, Fuhrman's on-the-record racist statements. The defense theory downplays Fuhrman's distinguished career after the retirement claim was denied. The defense also has to deny or minimize the obvious fact that perhaps more than a dozen officers were at Nicole's prior to Fuhrman's arrival, none of whom noticed two gloves rather than one.

A lawyer's tools are those of any storyteller: Lawyers appeal to human emotion, try to summon great motivators like injustice, sympathy, pity, terror, even (sometimes) prejudice. Lawyers take the raw material of facts, and by carefully selecting and constructing them, build them into a dramatic story that will sway a jury to see things their client's way. Their job is to assemble the story that best represents their client's version of events, to look at the facts the way their client views them, even if that means engaging in a certain conscious myopia.

But during a trial, law acknowledges the power drama has over facts by placing constraints on the storytelling ability of advocates. Lawyers must tell their client's story within the confines of due process and the rules of evidence to ensure that the jury will decide the case based on relevant and material facts. Lawyers are given wide leeway, but some facts are excluded from the jury's consideration because their contribution to one side's story, while emotionally powerful, may stray too far from legal relevance or plain reliability. It is the loss of this control that Judge Lance Ito is so concerned about in O.J. Simpson's case. Unlike lawyers, the media are not restrained by the constitutional and evidentiary boundaries that apply inside the courtroom and can report any version of the story that strikes their fancy, even the most unsubstantiated and inflammatory hints or rumors.

That problem is heightened in the court of public opinion. As in the media coverage of the Simpson trial, there are no rules of evidence, no canons of due process when we debate issues that make it onto the public agenda. As Jonathan Rauch has most persuasively argued in his book Kindly Inquisitors, the First Amendment is, and must be, pretty much an anything goes proposition. That means arguments about public issues may be unfair, irrational, feeble, deceptive, or even outright lies. Whatever works, as political consultants now so coolly shrug. One good emotional depth charge, one compelling story, can explode any sense of objective reality and send public policy spinning out of control.

"I can't support this scientifically, but I know it anecdotally…"

— Daniel Schorr

To merely invoke the name of Polly Klaas is to call her tragic story to mind, the kidnapping out of her own bedroom, and later, her merciless murder. What happened to Polly Klaas was inhuman by any standard. What her family suffered, no family should have to endure.

But while there is certainly reason to sympathize with Polly's family for their loss, this tragic episode is a decisive illustration of how stories obscure real facts. Intensely personal stories are perhaps the most effective way we have to make facts irrelevant. Every injustice happens one person at a time, even if that one person is completely atypical.

Because of the highly emotional nature of the crime, and because of the media's relentless attention, this one kidnapping and murder came to stand for Crime. While the statistics showed that the crime rate in certain, isolated categories (mostly crimes committed by young people) was higher than in previous years, on the whole crime was down—particularly the kind of violent crime that occurred in the Klaas case.

Despite the statistics, the Polly Klaas drama drove public policy. Because of its intense emotionality, it expanded beyond its own borders. It became everybody's problem, though what the specific problem was was a little vague at first. When the problem was finally defined as "murderers get out on parole," a solution could be devised ("three strikes and you're out" legislation) and enacted. All because of a story.

But at exactly the moment that "three strikes and you're out" became the party no legislator wanted to miss, a contrary story was unfolding in the press. In Singapore, 18-year-old Michael Fay was caught spray painting cars and was sentenced to receive six strokes across the bare buttocks with a wet rattan cane, later reduced in a political compromise to four.

While on its face Fay's story does not have the life-and-death emotional appeal of Polly Klaas's, the media found it equally compelling and tried to whip up a similar sense of terrible injustice. The case became an international incident. Although the American public was generally unsympathetic to Fay, the media resolutely focused on the caning, presenting it as something just short of the death penalty. Every television news organization had footage of a martial arts expert whacking the hell out of something, footage accompanied by voiceover narration about how canings slice the skin, draw blood, lead to fainting. We looked at the massacred object before us and were implored to imagine the beautiful young Fay's suffering, St. Michael of the Cane. Fay would be scarred for life, it was urged, both physically and emotionally. The caning would forever haunt him. How could the government of Singapore do such a thing? It was just a small infraction, after all. Why should the boy's punishment be so cruel?

As we know now, Fay survived the brutality and lived to profit from it. What is important here, though, is that in both the Fay story and the Klaas incident, news organizations had no allegiance to neutral facts; their loyalty in both cases was to drama.

Think about the stories the media did not tell, but could have. The Fay story could easily have been presented within the Klaas framework: If punishment is severe enough, it will deter future crime. In fact, that appears to be the framework in which most Americans saw the story. It would have been harder to present the Klaas story within the Fay framework (let's have a little sympathy for the defendant), but that story is not unheard of, as the Menendez brothers know very well.

Within the opposite story's framework, however, neither story would have sufficient capacity to stir up emotions. Presenting the Fay caning as an appropriate punishment lacks drama. Suffering has more emotional appeal than a single, quick act of well-deserved discipline. Similarly, sympathy for the defendant in the Klaas case was a little hard to muster; as a story, it was much more effective if you focused on Polly as the lead character.

Dramatic stories obscure facts and broader contexts by concentrating on a single point of view. That focus displaces other aspects of the story. In reporting the tale of Holly Ramona, who believes she recovered long-dormant memories of child abuse by her father when she was a young girl, the Los Angeles Times Magazine made this remarkable statement: "Father-daughter incest, once believed a rarity, is now said to occur in 1% to 2% of households." As the absolute number of human beings increases, words like rarity lose all meaning. Holly's story, like every story, is its own statistic; every story counts, and must be acted on. Something that happens 1 percent of the time is now more than rare, it demands our attention as a nation. And while there is no doubt of the gravity of incest, our national resources are now demanded for hundreds of thousands of things that happen 1 percent of the time, because the stories are so compelling.

Sure the cost of separating Siamese twins joined at the heart is astronomical, but how can you deny those children (or at least one of them) a chance at life? Can you put a value on a human being? Damn the cost, save that child. And maybe it is true universal health care would mean more people would live healthier lives on the whole. But does that really mean you'll have to have a rule that the life of an 80-year-old heart attack patient is valued less than the life of a 14-year-old boy with a kidney problem? Look in the face of the 80-year-old. Who makes the decision that someone's grandmother has to die? When we view facts as nothing more than the building blocks of drama, our focus is so close on the characters whose story those facts affect that it's easy to forget anything outside them.

"Life. What a beautiful choice."
—Anti-abortion TV ad

"Every life is a story waiting to be told."
—Ad campaign for the Los Angeles Times

There is no better example of the way the dramatic style now suffuses all of American society than the single example of abortion. The issue of abortion was established fully within the dramatic style sometime in the '70s, and it has flourished ever since as the most dramatic and polarized public-policy debate in modern America. While other issues such as race and sexual orientation have been similarly hyperdramatized, abortion adds a unique dimension that makes it the front runner in the drama derby—it involves the most explicit and interesting example of actual playwriting.

State laws concerning abortion date back to the beginning of this country, but the modern debate about abortion began when women first asserted that the decision whether or not to bear a child was included within the Constitution's right to privacy. The legal and constitutional argument is about government power over the individual and the specific point at which states may control personal decisions. This strictly legal argument has played itself out in a number of factual arenas, from searches and seizures in criminal cases to laws governing specific kinds of speech.

But while the underlying issue was a legal one, advocates challenging state abortion laws framed the debate in more dramatic terms. What was at stake was "women's lives." The image of a coat hanger, symbol of the thousands and thousands of dangerous back-alley abortions, became the centerpiece of the pro-choice argument. Women who had undergone such humiliating and life-threatening procedures came forward to tell their personal stories. Details filled the air.

As in Callins v. Collins, those stories were not false. Women had suffered during illegal abortions, and women had senselessly died. And all to assert an important aspect of human autonomy—the ability to make a choice about a highly personal, intimate, and life-changing decision.

By answering the laws in these dramatic terms, women were using a powerful tool to persuade the public and the courts. And at least as far as public opinion goes, perhaps no other kind of argument would have been as effective. The questions of governmental power and individual dignity are complex and often difficult to comprehend. Stories about women's pain and suffering strike at the heart; pity moves. But by using that singular weapon so prominently, abortion rights advocates also changed the nature of the debate. Abortion opponents could not answer such arguments with strictly legal ones. Once one side uses drama, the other side is obliged to respond in kind.

Therefore, the debate surrounding Roe v. Wade became one pitting women's lives against the lives of fetuses. Again, at least as the courts framed the issue, the vocabulary was from the Constitution. But it was the images of pity and terror that stirred everyone up, not the 14th Amendment and citations of Griswold v. Connecticut. As we all know, in the battle between women and fetuses, fetuses lost: a KO in the first trimester, and a partial but pretty clear upset in the second.

But Roe did not end the debate. And what kept abortion alive as an issue was the unconditionally dramatic terms in which the debate was now cast. Far from accepting Roe as a defeat, anti-abortion activists viewed the decision as a challenge. If abortion rights advocates could win the battle on dramatic terms, anti-abortionists would up the emotional ante and try to seize their victory in the war. In the years following Roe, fetuses were not just defined as human beings entitled to all the rights and privileges of the law, they were described as human beings, referred to as human beings, and finally depicted as human beings. Commercials, videos, ads showed how much a fetus looks like a baby. They called our attention to little toes and tiny fingers, movement, brainwaves, and the little guy's beating heart.

Roe was not overturned, and so the emotional ammunition went nuclear. Some pro-choice candidates found themselves having to answer ads showing footage of abortions, the bloody parts and remains of actual aborted fetuses. Objects claimed to be the end result of such abortions were bottled and displayed like the fragments of unholy saints, or attractions in the abortion sideshow to the circus of American politics. Clinic blockaders hooked arms and crawled like children, praying with all the conviction only true believers can muster, and crying, crying real tears for all the murdered babies.

To many on the pro-choice side these tactics seemed unfair, but anti-abortion activists were doing no more than pro-choice advocates had done—they were making their appeal dramatically. Whatever legal issues had once provided the foundation for the abortion debate were now nearly invisible. All that was left was drama.

But the anti-abortion argument deploys a wondrous variation on the self-dramatization pro-choice women relied on. Women who had suffered through illegal abortions were always telling the stories they had experienced, the central conceit of the dramatic style. But those who oppose abortion have no story with which to start, no self to dramatize. They are not, after all, telling their own stories but are appealing to our compassion for someone who as yet has no voice. But just defining a fetus as "potential life" isn't enough for the dramatic style to work. There has to be an actual story to dramatize.

A fetus's suffering can be implied from the pieces that remain in the aftermath of an abortion. But that image presents suffering without a story attached. The details are lacking. After a quick, horrific image, there's not much drama to fill an argument's sails the way a good back-alley abortion will.

But there is a way to get around this almost definitional problem—appeal to stories that actually do exist. Extrapolate from "potential life" to the visible lives of real children. Every fetus becomes not just a fetus, but your child. Look in your child's eyes. Look in this fetus's eyes. Could you kill your child? How, then, could you let someone else kill hers?

This is an almost quintessential act of playwriting, and its creative brilliance is breathtaking. People who have no story to tell, but who must exist in the world of dramatic style where a story is the only currency accepted or appropriate, invent a small life story through an appeal to empathy, and then posit that the story is being ended, even though in reality it has never begun. Suddenly, the images of fetus parts disappeared from the debate and were replaced by children on swings, wide-eyed little girls and energetic little boys, and the nicest narrator in the world intoning, "Life. What a beautiful choice."

The point is not so much to demonstrate the emotional manipulation of these advertisements as to show how fully we have accepted the dramatic style as a style. The dramatic style is the argument. To the extent the beautiful choice ads are intended to influence public policy, they are emblematic of the necessity in the modern world of conducting public policy debate in drama's terms. If you don't have a story, invent one, or stage one, or buy one from somebody. But you can't be heard until you have a story to tell, until you've proved you can tug at heartstrings.

"So often we simply must see their faces, hear their voices, in order to really be convinced of the truth of what we are being told—and so often we do not because the reporter has failed us as a storyteller. He has not been sensitive to what readers like, to those high-interest elements that separate a good story—or story idea—from a tedious, unengaging one."

—William E. Blundell in The Art and Craft of Feature Writing

Personal stories are not the only basis on which politics can be conducted. Personal stories are illustrations, but they fit into a bigger picture—an analytical framework, a statistical pattern, a social context, a philosophical point. Isolated from such broader contexts, personal stories can be entertaining but can lead away from reason, not toward it; every story has a counterstory somewhere. Every woman skulking down a back alley has a counterpart, a child somewhere on a swing. Every man about to be executed has a mother, but he also has a victim, who also has a mother. And every single story is only one, one among a multitude that could be told. The black guy who didn't get the job because of unfair prejudice has a story to tell, but so does the white guy across town who's unemployed because of an affirmative action policy, not because he wasn't qualified. Jesse Helms and Jesse Jackson both know how effectively stories work in the public world.

The problem boils down to a terrible irony—when public debate relies on the empathy engendered by stories, our compassion can be used to paralyze us. The reason we do not use the death penalty more than we do is not "legal technicalities," or too many liberal judges, or laws that are exceedingly lax. The reason we do not execute more people is that we are frozen in place by compassion when it comes down to the wire. The possibility that we might execute the wrong man is the most horrific story imaginable. While acknowledging its statistical improbability, Justice Blackmun said in Callins v. Collins that even the rare possibility of being party to such a story was too much for him.

When Justice Blackmun announced his retirement from the Supreme Court, it was his compassion as a judge that was most often mentioned, not only his compassion for women in Roe v. Wade, or for criminal defendants who might have been convicted wrongfully, but compassion for minorities of all kinds. But compassion for one party is often hostility to someone else. In public debate, compassion is a fiction maker's trick without a fiction maker's control over context. Compassion for welfare mothers is good, but where is the compassion for taxpayers whose obligations are continually on the rise? In the dramatic style, one person's story will ultimately count for more than someone else's, which must be rejected. What does his compassion for women say about Justice Blackmun's compassion for potential children?

Drama gives us pleasure, but as it moves out of fiction into the real world, it carries greater and greater dangers. By focusing public debate on hurt feelings, we almost guarantee we will hurt someone's feelings—the person whose feelings are not being focused on. Public policy cannot focus everywhere at once. And when it tries, we get contradictory policies—attempts, for instance, to cut taxes, increase entitlements, and balance the federal budget all at once.

I don't know if there's any way back from the dramatic style. It arises from too many factors that are inevitable aspects of both human nature and the technological world—the eternal appeal of stories, the pervasiveness of the greatest storytelling medium in history, our inherent desire to be compassionate and caring, the certainty of human conflict. There is no way our news organizations will give up the greatest audience attraction they have at their disposal, and as increasingly factionalized interest groups continue to benefit from the attention and success of pathos and pity, they, too, will hang tough with what works.

But as we grasp at every available theory to explain baffling phenomena of our times, such as why an increasing number of juries are failing to convict criminal defendants (particularly in high profile cases), it may be worthwhile to consider this one: that the most lavishly compensated defense lawyers have seen the changes in our culture affecting the priorities we all have. Judgment and empathy are in eternal conflict, but in recent years empathy has gained a considerable edge because of our extravagant exposure to drama, our intimate familiarity with other points of view. It takes less and less effort to exploit that reality in a courtroom. And courtrooms are only one among a hundred places where we let our compassion tip the scales and then wonder why things turned out the way they did.

Back in the 1940s, a catalog of classes at the University of Southern California law school listed "Rhetoric" as a mandatory course. Today, you would be hard pressed to find a class in rhetoric at any school. But we live in the most rhetorically complex society in history. The dramatic style is one of the most powerful persuasive devices imaginable, and it has become the most common way we debate public issues. Unfortunately, it produces an inevitable downward spiral—drama can only be answered by more and better drama.

But the dramatic style can be recognized as a style, as a rhetorical device that uses facts for its own purposes, that openly manipulates an ambiguous reality, that exploits compassion. The tools for discerning and analyzing drama as a style are fundamental, not only for lawyers, but for anyone who participates in democracy. Yet we do not teach students this—that what is best about us, our compassion and our empathy, can be and frequently is used against us. Until we learn to cull what meager information we are given these days out of the dramatic context within which it's presented, we will continue to be a nation bewitched, bothered, and bewildered by the storytellers who surround us on all sides.

David Link is a lawyer and playwright in Los Angeles.

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