Consistency and motives

Clarke Rountree rountrj at
Thu Aug 15 17:54:15 EST 2002

To the no-sided Michael:

Let me move you beyond "judicial methods"--a phrase that sounds like there
is legal science at work.

Judicial opinions are shot-through with concerns over motives. One example
from the master himself:

"In a judgment written by Justice Hugo L. Black, the Supreme Court ruled
that it was not 'beyond the war powers of Congress and the Executive to
exclude those of Japanese ancestry from the West Coast area at the time they
did.' And by implication, the scene-act ratio was invoked to substantiate
the judgment: 'When under conditions of modern warfare our shores are
threatened by hostile forces, the power to protect must be commensurate with
the threatened danger.'" (Grammar 13, qtg. Korematsu v. United States, 323
U.S. 214, 220 [1944])

In addition to considering the motives of the government, of military
officials, of criminals, of public speakers, etc., they also consider,
construct, construe, spin, and deconstruct the motives of  dissenters (whom
they want to show are "misguided"), earlier courts, lower courts, and,
importantly, themselves. Every judicial opinion is essentially a portrait of
motives that says "here's what we did and here's why we did it," where their
motives are shown (ideally) to be constrained by "the Law," "justice,"
"fairness," "prudence," etc.

As to the phenomenology of judicial motives, I don't know where you want to
draw distinctions between phenomena and epiphenomena. Pragmatically, the
"motives" most relevant to judicial opinions are not the ones that can be
traced to what a judge was REALLY doing in making the decision, but the one
that is EMBODIED in the discourse of the opinion. That is the one that
matters when lawyers argue about what a precedent means, when it should
apply, how we should understand what "the Law" is, etc. Let's take an
example: The felonious five twisted the law into an odd form to get a
verdict in favor of W. Not only do they have to live with the slings and
arrows that dozens of legal commentators have thrown at the disingenuous
rhetoric they used to support the decision, but they have to live with
"motives" they embodied in that decision, as they will certainly be thrown
back into their faces. Lawyers will now argue, following the reasoning of
the opinion, that one need not show intent to show that 14th Amendment
rights to equal protection have been violated. (Oh, yes, the conservative
five will squirm with that, but they will squirm within a grammar of motives
they themselves helped construct.) What the pentad provides here, which
traditional approaches to jurisprudence do not, is an explanation of the
elasticity (and limits) of judicial decisionmaking, whereby something like a
precedent which is often thought of as merely a rule (an agency in Burke's
corpus) can be opened up into a full-blooded act for reconstruction (showing
that this "agency" is a mere "reduction" what the court was doing and why it
was doing it).

My Korematsu essay in QJS (Feb. 2001) details my argument for applying the
pentad to judicial decisions.


-----Original Message-----
From: owner-kb at [mailto:owner-kb at]On Behalf Of
Michael Calvin McGee
Sent: Thursday, August 15, 2002 5:06 PM
To: kb at; Bruce Gronbeck
Subject: Re: Re: Consistency and motives

----- Original Message -----
From: "Bruce Gronbeck" <bruce-gronbeck at>

> Interesting.  I think I stand (as usual) in the middle:
----- Original Message -----
From: "Clarke Rountree" <rountrj at>

> First, let me agree partly with Bruce and partly with Michael on Burke's
> pentad.

'Tis amazing how quickly one can be constructed into a controversy with
"sides."  Something about this experience urges you to think of "yours" as
the "side" now requiring a "defense."  I assure you, I have no stake in a
side here, as Clarke seems the only person with a significant amount of
writing invested in any conception of Burke's use of the pentad. But, if I
did have a side (a) I'm not sure what it is, and (b) I don't feel
comfortable sitting back while either Bruce or Clarke tells me what I think.
I do believe that Burke wants the pentad to be a method for interpreting
human motives.  Supreme Court justices need methods for interpreting the
Law.  I understand how Burke could be interested in the motives of Justices,
Why and How they came to Be authorized to write as they do. They are
residents of the human barnyard.  I'm less clear on the Justices' use for
the Pentad, except in cases of judicial malfeasance in lower Courts, because
they are not concerned with human motives.  They are concerned with
arguments.  Now I am not suggesting that Burkean analysis of Motives is
never useful in the study of legal topics; nor am I suggesting that Justices
never find Burkean analysis useful.  Jeez!  I'm not suggesting *anything.*
It just seems to me that if you want to write about this, you need to be
more clever than to find a theory of Motives in Acts 1-n, where "Acts" are
judicial opinions.  As I said in my first post, the Pentad interprets
phenomena, while the Justices' discourse is epiphenomenal.

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