Courts interpret the law. It is expected, or at least hoped, that they do so in a way that provides the public, from which come litigants and their counsel, a reasonable degree of predictability, if not certainty. From this dictum one would expect that surprise would be an unwelcome guest whose brash presence could be embarrassing to counsel advising their clients. But to quote Heraclitus, the Greek philosopher, which I do, with annoying regularity, “Northing endures but change.” And because the law is not static and immutable, and therefore subject to Heraclitus’ maxim, it should come as no surprise that judicial decisions are often surprising. But what is an unwelcome surprise decision to some may be a decision hoped for, if not expected, to others. “Surprise,” like obscenity, is in the eye of the beholder.
In his confirmation hearing, Chief Justice Roberts saw his role as a referee calling “balls and strikes.” But that assumes that laws, like the rules of baseball, are fixed, and judges merely decide whether the litigants’ conduct, like a player's swing at bat, is a ball or a strike.
Who would have believed that after 100 years of precedent, the United States Supreme Court would have ruled in Citizens United v. Federal Election Commission (2009) 130 S.Ct. 876 that corporations are the same as individuals for First Amendment purposes. Or to some, assessing the court’s proclivities, the ruling was no surprise.
In any circumstance, I dislike being on the receiving end of a surprise. I dread the thought of ever being the “victim” of a surprise birthday party. I have seen the hapless birthday person walk into his home with a bag of groceries, and the expectation of a quiet evening reading Marcus Aurelius’ "Meditations," fumble for the light switch, then nearly have a heart attack when 75 screaming voices yell, “Surprise!!”
I do not relish helping plan a surprise party, but on occasion I am impressed for duty. I recall helping plan a surprise party for a friend who loved Orson Welles’ masterpiece, "Citizen Kane." He could recite all the lines from the movie by heart. As he unsuspectingly walked into his darkened living room, I induced all the party goers to shout, “Rosebud.” As we revived him, he was too startled to even register what we had yelled.
I have been on the receiving end of surprises now and then during my 35 years on the bench. I am not talking about the inevitable reversals and the occasional affirmances from higher courts. When I was “elevated” (sounds like a religious rite) from the Municipal to the Superior Court, a public defender, and good friend, Linda Schwartz planned a courtroom surprise for me. I took the bench for the afternoon calendar and called a case the clerk had put in front of me. A young woman, dressed in tights, came before the bench and sang and danced to music on her tape recorder. The original lyrics recounted my adventures as “King” of the traffic court and “Dispo” artist in the criminal misdemeanor calendar court. Everyone in the courtroom applauded. I held her in contempt.
Shortly thereafter I was invited to a party given by two public defenders. One of them, let’s call her S., told me the party was a surprise, but not a surprise birthday party. The surprise was for the guests, because this party would be her surprise wedding, a wedding that she asked me to perform. She extracted a promise from me that I not tell anyone about the surprise. I wasn’t sure if this included the groom. I was relieved when during the ceremony he responded, “I do,” to the all-important question I put to him.
This wedding was truly a surprise to all the guests, including the parents of the bride and groom who the couple thoughtfully invited. At the appropriate time, I called the guests into the backyard and quieted them down. Pandemonium broke out when they realized the ceremony I was performing was not a skit, but the real thing. The congratulations and hugging lasted the rest of the night. The couple asked if I enjoyed participating in this bit of deception. I said did, but asked myself, “What about wedding presents?”
I also performed a surprise wedding for a couple I knew who were in “couples group therapy.” I performed the ceremony at the close of one of their sessions. The weekly sessions were conducted on Tuesday evenings by a married couple, both of whom were psychiatrists. The group consisted of about five or six couples who had been attending these sessions for a few years. They met in the therapists’ office in a nondescript building on Wilshire Blvd. in Santa Monica. The couple for whom I was to perform the wedding ceremony asked me to “drop in” at 9:30 p.m. at the close of the session.
I parked in front of the building at 9:30 sharp. The prospective groom, let’s call him D., was waiting for me in front of the building. He was the only person in sight. It was eerie seeing him there, his shirt sleeves folded back above his wrists, his tie loosened below his open collar, a lone figure, bathed in a shaft of light coming from the empty lobby. I had an uneasy feeling as I approached him. It was like walking into an Edward Hopper painting.
He greeted me and we took the elevator up to the 10th floor. “We are having a little celebration,” he said. “It’s Marty’s birthday.”
“It’s not a surprise party is it?” I said, trying to be light hearted.
“No,” said D. “Only our marriage.”
We walked a short distance down the empty corridor and D. opened a door. I walked into a brightly lit room that was furnished like a comfortable den, with couches and easy chairs. The couples were talking and laughing, drinking wine and munching on birthday cake. They looked up from their reverie and suddenly the room turned completely silent. I was apparently the first outsider ever to breach this inner sanctum in which I imagined the most intimate practices, inner feelings, fantasies, and provocative stories were revealed.
D. broke the ice. “This is Art,” he said, and walked to the other side of the room. There was an empty chair nearby. I sat down. They were all staring at me, not saying a word. An attractive blonde woman with a cutting knife in her hand finally said warily, “Art, care for a piece of cake?” “That would be nice,” I replied. She cut me a piece, carefully placed it on a plate and handed it to me. “It’s Marty’s birthday,” she said. “Thanks,” I said. “And Happy Birthday to Marty.” Of course, I didn’t know which one was Marty. The conversation among the couples resumed, but was now more like a murmur. I munched on my cake and even accepted a glass of wine.
A man came over to me. I think it was Marty. He was about to ask me a question, when I noticed D. give me a high sign. I put my cake down and got up from my seat and said, “Excuse me.” I walked to the front of the room where D. and S., his soon-to-be-bride, were now standing. All eyes were on us and everyone stopped eating and drinking. I welcomed everyone there, enjoying that brief moment of rhetorical irony. I then began the wedding ceremony. They caught on, and the place erupted in cheers, tears, and shouts of joy. The ceremony over, I took my leave. They gave me an extra piece of cake to take home.
Both of these surprise weddings occurred many years ago. I am pleased to inform you that my wife Barbara and I are good friends of the surprise wedding couples, and that both couples are still happily married.
But despite the happy outcomes of the surprise weddings I just related, surprise Supreme Court decisions can be unnerving. Reversals from a higher court can cause a lower court judge (that includes me) to say or think, “I knew it.” No matter, it still may be a surprise. Affirmances should not be a surprise, but merely a validation that you on the lower court got it right. But still, the lack of certainty brings an element of surprise to decisions rendered by higher courts.
But a big surprise decision can be disquieting. It causes one to wonder what happens next. Getting back to the Citizens United case for example: If corporations have the same First Amendment rights as people, perhaps next corporations will be able to sue for loss of consortium. Under the rationale of Citizens United, this should come as no surprise. Loss of the capacity to do what some corporations excel in just might be compensable.