Chess Algoritms of Supreme Court Decision Making a Bioconstitutional Politics Analysis - Ira Carmen

Chess Algorithms of Supreme Court Decision Making: A Bioconstitutional Politics AnalysisAuthor(s): Ira H. CarmenSource: Political Behavior, Vol. 11, No. 2 (Jun., 1989), pp. 99-121Published by: SpringerStable URL: http://www.jstor.org/stable/586275 .

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Political Behavior, Vol. 11, No. 2, 1989

CHESS ALGORITHMS OF SUPREME COURT DECISION MAKING: A Bioconstitutional Politics Analysis

Ira H. Carmen

This paper examines, from a biopolitical perspective, the methodologies by which Supreme Court justices have interpreted the Constitution, assessing their decisional algorithms against models owing an intellectual debt to evolutionary theory. The models themselves are drawn from the chess literature, itself the most viable game theoretic context for "living constitutional" play. A proper appreciation of chess mastery yields the salient conclusion that a functionalist algorithm of data characterization is optimally adaptive for these purposes, usually proving more robust than competing structuralist and heuristic algorithms in resolving complex constitutional issues.

The literature of contemporary political science is increasingly becoming a literature of decision making, a literature essentially informed by the cognitive sciences. Bearing witness to this trend are contributions as diverse as the writings of Herbert Simon and the reports of the University of Michigan Survey Research Center. In the constitutional politics subfield, that development has been exceedingly slow; however, we now realize that Supreme Court justices employ neocortical processes of power allocation far more sophisticated than either the deductive application of geometric propositions ("mechanical jurisprudence") or the inductive cumulation of cultural propensities ("sociological jurisprudence") when they decide cases (Schubert, 1967). Still, the manner in which constitutional interpretation is an artifact of competing decisional algorithms remains largely inchoate, for while there is much discussion of "broad construction" vs. "strict construction" and "judicial activism" vs. "judicial restraint," these are best conceived as role orientations (Becker, 1964), not computational exercises. Moreover, distinctions between "libertarians" and "statists" and comparisons between "liberals" and "conservatives" emphasize preferred policy

Ira H. Carmen, Department of Political Science, University of Illinois, 361 Lincoln Hall, 702 South Wright Street, Urbana, IL 61801-3696.

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0190-9320/89/0600-0099$06.00/0 C 1989 Plenum Publishing Corporation



goals or results, telling us nothing about the means by which these values are derived.

In this paper, I cull from the relevant game theoretic literature three decisional algorithms which players have historically used to deploy constitutional norms. I then show by empirical analysis the closeness of fit between these algorithms, used here as models, and the decisional algorithms deployed by various Supreme Court justices. Finally, I show that one of these formats, the functionalist approach, comprises an optimal adaptive strategy according to prevailing biopolitical and neuroscientific wisdoms. I begin by defining certain key concepts and explicating the theoretical understandings which underlie this investigation.

Previous research (Carmen, 1987) has yielded formulation of a bioconstitutional politics paradigm, its mainsprings and parameters arising from the confluence of two rather disparate fields of political science inquiry, constitutional politics and biopolitics. Aspects of the logic underlying that formulation deserve restatement here. The concept "constitution" means considerably more than a document ratified at some formal occasion or a set of explicit rules that has evolved over time. It also includes the customs, the norms, the implicit expectations, and the sociopsychological patterns of action and belief upon which the "stuff' of statecraft achieves expression (Llewellyn, 1934). The notion of "constitutional politics" focuses not only on how these loci of shared understandings orchestrate power relationships but also on how the kaleidoscopic play of these power factors makes for "give" within the rule structure itself (Carmen, 1978, 1985). The term of art "biopolitics" has grown out of the presumption that man's political orientations and values (Lasswell and Kaplan, 1950) are in some measure species determined, that is, genetically, biochemically, and neuroscientifically ordered, and that these processes and values are also in some measure adaptive phenomena evolving to the differential impacts of environmental stimuli. The neologism "bioconstitu- tionalism" presupposes that Homo sapiens' constitutional attitudes and behaviors can never be mapped and specified until his relevant biological attributes are mapped and specified. The manner in which bioconstitutional trends and tendencies influence Homo politicus and vice versa is the core conception underlying the bioconstitutional politics paradigm. At root, this line of inquiry seeks a general theory explaining the dynamics of Homo politicus constitutorius.

A key element in this paradigm is man's "biopsychological constitution," by which is meant the human brain as a unique rule-making, rule-finding instrument nurturing and sustaining basic patterns of proper thought and action.' Of particular biopsychological relevance here is the quest to

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DECISION-MAKING ALGORITHMS

develop a parsimonious analytic format where the observation, comparison, and selection of competing constitutional rules assessed against the criterion of political adaptability becomes accessible. At first blush, computer simulations would appear most feasible for investigating norm viability (cf. Axelrod, 1984, 1986; Simon, 1979, chap. 6). Unquestionably, neuroscientists have achieved their greatest successes in charting cerebral processes through the programming of chess-playing machines. As Donald Michie has said: "Scientific study of computer chess ... is the most important scientific study . . . in the world at present," for chess is to human problem-solving what the Drosophila is to genetics, viz., the archetypal laboratory specimen (cited in Leithauser, 1987, p. 45).

I contend that chess reasoning is highly probative of constitutional politics reasoning, especially when one compares their respective "rules of the game." The explicit rules of chess spelling out how the King, Queen, and other pieces move are analogous to the notion of power separation among the three branches of American national government (see the "distributing clauses" in Articles I, II, and III) or, less fundamentally, to the two-term limitation upon presidential service (Amendment XXII). An argument that the written constitution of chess is invariant-somehow less susceptible to political manipulation and interpretation than the written constitutions of nation states-sounds suspiciously like Professor Crosskey's or Professor Berger's United States Constitution, a document chock-full of textual imperatives. The implicit rules of chess, i.e., conventions of correct play, are also comparable to the implicit rules of the American constitutional regime. Hence, the notion that rooks belong on open files, bishops on long diagonals, and knights placed toward the center are analogous to the President honoring senatorial courtesy, the Speaker of the House acknowledging the seniority system, and the Supreme Court paying attention to election returns. More generally, as the chess master must know and apply the significant games of the past and the opening fashions of the present, so justices on the bench must know and apply the significant holdings of the past and the law review fashions of the present. Both a chess computer and an American constitutional law computer can absorb these rather substantial and sophisticated cultures.

Finally, if interpersonal relations in a power context are the guts of politics, then it should be clear that the battlefield condition of chess competition is a quintessential political expression. For those who would say that Supreme Court justices are not concerned with checkmating anyone, I say that shrewd judges, like shrewd chess players, strive to achieve only the results which "position command" (for them, "issue command") will permit, search for standards of valuation in the face of dogmatic impulse, and seek victory in the form of professionally acceptable and philosophically inspired

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argument, not to defeat colleagues who think otherwise but to vindicate some highly prized belief, some constitutional nicety.

With respect specifically to biopsychology, chess has often been likened to mathematics and music: These are highly abstract, acultural talents, featuring the spatial concepts of number, note, and piece-square relationship. They are the only intellectual endeavors noted for producing prepuberal works of genius (see generally de Groot, 1965). When mature chess masters blend these spatial modes, which neuroscientists consider artifacts of right hemisphere cerebral acumen, with the left hemispheric analytical modes discussed above, the result is a neocortical preeminence manifestly genetic in mainspring. And distinguished practitioners of constitutional jurisprudence are also blessed, one must presume, with innate capacities to build analogies and syllogisms, to weigh the character of competing precedents, norms, and interests in the face of confusing, often unique, fact situations (cf. Cardozo, 1921; Levi, 1948). To say that anyone can be a Brandeis is about as foolhardy as saying that anyone can be a Gershwin. I make bold to submit, therefore, that the "chess model" of constitutional analysis, if we can decipher the model's "genetic code," is an adaptive species strategy, helping to protect judges in particular and political systems in general from the twin dangers of "totem overreliance" and adjudicative license, each of which can make it extremely difficult for constitutional cultures to survive over time.

Unfortunately, computer chess is hardly comparable in strength of performance to grandmaster chess. One expert has concluded: "Chess machines don't make plans, they make moves" (Valvo, quoted in Leithauser, 1987, p. 61). But there are plans and plans. For purposes of demonstrating the robust mutuality between chess decisional algorithms and constitutional law interpretive algorithms, I shall argue, first of all, that chess computer programs know very little about politics. Secondly, they know very little about aesthetics. These are staples of both championship chess play and "championship" Supreme Court constitutional analysis, as examples from those worlds graphically show.2

In Figure 1, White (Janowski), having made his 22nd move, has obtained what appears to be a clear advantage over Black (World Champion Lasker). The strongest computers extant would note that White has doubled his rooks on a critical open file, has built up a phalanx of pawns in the center, and has placed a bishop in control of a key diagonal. In short, these machines could count at least three implicit constitutional values or norms in White's favor with no countervailing values running against him either in the form of enemy strengths or his own weaknesses. Yet, Black actually stands far better and will win in a few moves; nor does White commit any clear errors of strategy or tactics. Why? Because while stockpiling generally

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FIG. 1. Black wins as follows: 22 ... g7-g6; 23. c4-d3, e8-e7; 24. c3-c4, h5-g7; 25. c2-c3, g7-e6; 26. d3-fl, f6-f5; 27. g4-g2, f8-f6; 28. fl-d3, g6-g5; 29. gl-hl, g5-g4; 30. d3-e2, e6-g5; 31. f3:g4, f4-f3; 32. g2-g3, f3:e2; White resigns.

accepted decision rules may win simpler games, that strategy often will not resolve the compelling, difficult "constitutional riddles" of the day.

In the case at hand, Black's position is dynamic rather than static; to appreciate Black's possibilities one must possess positional "feel," a mature understanding of balance, competing interest, and the underlying threads of reciprocal alliance in fields of force (Sergeant, 1963, pp. 153-154; Steiner, 1972). The 12-year-old Morphy at the chessboard, the 12-year-old Mozart at the keyboard, and the 12-year-old Gauss at the blackboard did not possess this level of insight, which requires great talent, but more to the point "adulthood," and most particularly political sophistication in the grand manner.

This duel of algorithms brings to mind several opposite numbers in the Supreme Court literature, a notable testament being Irvine v. California (1954). On the one hand were justices brandishing the static concept of "incorporation"; no matter what the facts of the case, the enumerated principles in the Bill of Rights dictated for them the scope of due process. On the other hand were justices countering with their static notion of "nonexclusionariness"; no matter what the facts of the case, evidence illegally obtained without coercion constituted for them taintless fruits. Only Justice Frankfurter, joined by Justice Burton, could penetrate to the depths of the "position," arguing that one month of patently illegal police electronic surveillance monitoring the conversations in every room of

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petitioner's home was much more intrusive than the coerced use of a stomach pump to extract incriminating evidence (cf. Rochin v. California, 1952), and that with all respect to the jurisprudential considerations articulated in Wolf v. Colorado (1949), these conversations ought not be introduced into court (cf. Frankfurter's tack, reaching a conclusion this time favorable to the state's claims, in Louisiana ex rel. Francis v. Resweber, 1947). What conjoins Lasker with Frankfurter on these occasions is a common political methodology: the human mind canvasses a field of social action, searches for underlying functional themes by assessing the totality of data in dynamic positional relationship, and then posits general standards of constitutional balance from those nice judgments.

Similarly instructive is the lesson conveyed by an appreciation of Figure 2. This position arose in a game between Fischer (White) and Bisguier contested in 1963. Fischer has just played 9. gl-h3. The move is extraordinary. First, it looks uncouth. Why is the knight sitting on the edge of the board rather than in the center, apparently in clear violation of an implicit norm of play? Second, why cannot Black, also in accord with conventions of proper strategy, immediately launch an Anderssen-like attack on the "vulnerable" King side (see Continuation A, Figure 2) which appears, on initial inspection, irresistible? No doubt this line would appeal

tim a

FIG. 2. Continuation A: 9 ... c8-f5; 10. 0-0, d8-d7; 11. fl-el, f5:h3; 12. g2:h3, d7:h3; 13. e2-fl and White wins. (Also failing are 9 ... g7-g5 and 9 ... c8:h3.) Continuation B: 9 ... f8-d6; 10. d2-d4, e5-e4. Continuation C: 9 ... f8-c5; 10. 0-0 (or 10. d2-d3, 0-0; 11. bl-c3, f8-e8 though perhaps g6-d5 is better), 0-0 (but probably not g7-g5); 11. d2-d3, c8:h3. This analysis is culled largely from Fischer (1969, pp. 281-282). For the "traditional" assessment of 9. gl-h3, cf. Tartakower and du Mont (1975, p. 47).

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to today's immature computer programs which, emphasizing such values as material gain, territorial advantage, and King protection to the detriment of positional nuance (cf. Botvinnik, 1981, pp. 176, 215-216), would charge straight ahead with brute force acumen (cf. Botvinnik, 1981, p. 212, with Handberg, 1987). Certainly none of these artificial intelligence exercises would conjure up gl-h3!3 Third, this move had actually been proposed more than 70 years earlier by World Champion Steinitz, only to be found wanting according to prevailing theory and discarded. What, then, was Fischer doing? Quite simply, he had studied the evolving "constitution" of chess strategy and concluded, based on the political dynamics of the position, that Steinitz's notion was sound. Of course, Black has counterplay (see Continuations B and C, Figure 2), but the viable options must conform to the "totality of reciprocal relationships" paradigm.

More fascinating yet are the aesthetic features of the position, features which can even tip the balance in determining decisional choice. Einstein was more than a scientist; he was an artist (Chandrasekhar, 1988). Watson's "solution" to the structure of DNA pressed for approval when weighed against Pauling's "solution" because, in part, the double helix conception seemed so beautiful, so elegant. Judicial decisions that balance competing political nuances in dextrous fashion, and which as well enhance the essential rule structure while preserving the Court's power base, also display a touch of the beautiful and the elegant (cf. Carter, 1986). A classic example would surely be John Marshall's Marbury opinion (Supreme Court's authority to declare acts of Congress unconstitutional asserted from "defensive" posture of apparent impotence to assist putatively wronged petitioner; President Jefferson so offended by Chief Justice's lecture on Marbury's legal rights but so pleased at his adversary's retreat that he fails to appreciate at the critical "moment of truth" the gravity of the constitutional doctrine enunciated). Another good example would be John Sirica's Senate Select Committee opinion (federal courts lack jurisdiction to decide civil suit between Congress and the President upon the resolution of which the merits of "Watergate" might hinge, cf. Carmen, 1978, p. 191).

Aesthetic values were undoubtedly adaptive strategies for our Cro- Magnon ancestors, and they are certainly-like the "living" constitutional relationships that underlie the politics of a race of beings that could create and nurture chess-adaptive strategies for Homo sapiens as we know him. Even the Nazis needed their Wagner as, indeed, Lenin and Stalin needed their chess. From this aesthetic standpoint, 9. gl-h3 feels right in the sense that Einstein's relativity conception feels right, even though Newton's laws "look" better (see generally Nimzowitsch, 1962, for an analysis of chess decision rules that "look good" but "feel bad" as against rules that "look bad" but "feel good"). In fact, once an audience perceives the delicacy of

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interrelationships among functional themes, what feels right eventually looks or sounds right as with Picasso's cubism and Stravinsky's atonalities.

To reemphasize the main point: Rule formulation and adaptation, at least at the level of constitutional explication, is neither a function of the brain as computer (cf. Allman, 1986), nor even a function of the brain as piano where "hormone harmonies ... come together to create the music of the mind" (Bergland, quoted in Clark et al., 1987, p. 53), but is a function of the brain as chess player logician (Carmen, 1987, p. 207, Table 1).

I am now prepared to present both a general theory of chess algorithmic procedure and a general theory of United States Supreme Court constitutional algorithmic procedure. I also demonstrate that these cranial sets are mirror images of one another.

A careful review of the chess literature (see especially Euwe, 1970; Reti, 1960, 1976) indicates that the great players have tended to be either classicists or romantics in their orientations toward the game. Classicists are rational thinkers, who build their positions according to fairly conventional, fairly predictable norms of appropriate conduct. Romantics are heuristicians, who very often base their judgment on instinct, epiphany, and perhaps even sheer hunch. Obviously, not all top performers are readily classifiable, and obviously particular players hardly find it necessary or proper to exhibit these traits in each and every competitive situation. Moreover, the issue here is not one of supremacy, which can be the product of many extraneous variables, but rather of style, of coping device, of

procedure. In short, the dichotomy seeks to distinguish champions with

regard to how they think and with regard to how they solve the pressing problems that confront them over the board.

Figure 3 presents a paradigm of world-class chess performance, which

compares players in accordance with the decisional algorithms that have featured their accomplishments. The paradigm is based on observations and reflections I have gleaned from an examination of scores of published contests in which the cited champions participated as well as various and

sundry commentaries offered by leading annotators in the field. Note that these algorithmic styles are here labeled "constitutional orientations," by which is meant that they capture the essential modus operandi, the basic manner of position appraisal and "strategizing" of each grandmaster.

At the left-hand end of the continuum sit the classicists, the rationalists, or, if one will, the structuralists. The most extreme case would be Tarrasch, whose every plan, whose every move, was made in avowed conformance with his system of truths. Somewhat less extreme would be World

Champion (1921-1927) Capablanca, the Mozart of chess. His modern-day counterpart is Anatoly Karpov.

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Lasker

FUNCTIONALISM

Capablanca , Alekhine

Tarrasch Karpov Steinitz Kasparov Tal

STRUCTURALISM HEURISTICISM FIG. 3. A paradigm of chess player constitutional orientation by style of decisional algorithm.

At the right-hand end of the spectrum sit the romantics, the heuristicians. An extreme example would be Tal, admired for the unique complexity of his aggressive sallies, many of which have proven, upon the deepest analysis rendered after the fact, to be unsound. Somewhat less extreme would be Capablanca's great rival World Champion (1927-1945) Alekhine, whose love for the intuitive thrust yielded, where necessary, to positional restraint. His modern-day counterpart is Gary Kasparov.

And astride the center, synthesizing both rationalist and heuristic models, would be World Champion (1866-1894) Steinitz, founder of the Modern School, but whose manifold eccentricities such as the aggressive deployment of the King and such moves as the hereinbefore cited 9. gl-h3 cannot possibly be explained by reference to his almanac of verities.

Of critical importance in appreciating the paradigm and perceiving its relevance to decisional algorithms as constitutional orientations is the relationship between Steinitz and World Champion (1894-1921) Lasker. That Lasker considered himself a disciple of Steinitz is well known. But both Tarrasch (incorrectly) and Fischer (probably incorrectly) also believed they were following in Steinitz's footsteps, in the sense that they approached the game from the teacher's scientific perspective. Tarrasch and Fischer, however, sought truth over the board; they looked for, and often found, the best possible continuation or solution. Lasker's interest in truth was minimal; rather, he added a new dimension to Steinitz's philosophy, the notion of positional balance (Lasker, 1947, p. 229). That is, superior chess play is governed by explicit and implicit norms of judgment (Steinitz), but

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each interesting position contains its own power configurations, these discrete properties arising out of the "total value of the pieces" addressed from the standpoint not of their "separate values, but their cooperative value as they interact" (Sergeant, 1963, p. 79).

To this, Lasker added an appreciation of the human personality. Chess positions mean different things to different people; correct play must vary with the temperament and style of the opponent. So, for Lasker, chess was mathematics, art, and especially politics. He established no school simply because other players have found his variegated approach so hard to understand and emulate. Lasker was a pragmatist and more. He was a functionalist in the sense that his decisional algorithm involved perceiving positions on the board as exercises in field theory valuation, inducing totalities from data flows, weighing competing patterns of dynamic influence, and taking into account as well the politics of the moment, meaning the competitive situation between real people who bring to the struggle their own predilections, tastes, and ambitions. Computer simulations cannot ape Lasker any better than they can ape the mind of man in addressing any problem entailing the application of subtle "constitution- alities" to delicate problems.

For Lasker, of all chess grandmasters, has come the closest to applying how real people think and behave in life's comparable situations. That skill is as biopsychological in its mainsprings as van Gogh's or Shakespeare's skills. But it is no more biopsychological, though of course closer to the touch of genius, than the decisional skills of Homo politicus constitutorius. We are just now beginning to ascertain how our species, in the face of constantly shifting parameters of political cost and benefit, retains a sense of the fundamental rule-network, though, of course, modifying where necessary many of its discrete components (cf. Almond and Verba, 1963; Devine, 1972; Gluckman, 1955; Lane, 1962; Rokeach, 1968; and see

generally Lasker, 1947). For us, structuralism and bright-lined principle will often do; at other times, intuition, equity, and "a sense of things" is sufficient. But what the relevant game theoretic literature-actual chess

play-tends to show is that in weighty constitutional moments, functionalism is the most adaptive mode.

Attempts to classify Supreme Court justices according to systematic behavioral indices are naturally less advanced than comparable taxonomies for chess playership, because the field of judicial "science" is only 45 years old and because the craft of "constitutional interpretation," as students of

government employ that phrase, involves humanistic dimensions not

present in the world of chess theorizing. Still, there is an important literature demonstrating that justices can be scaled with respect to their

disparate value propensities. Thus, Justice A is rated more liberal, more

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amenable to free speech claims, more leery of judicial intervention in the nation's business, etc., than Justice B (Carmen, 1966; Grossman, 1962; Pritchett, 1948; Schubert, 1965b; Spaeth, 1966; Ulmer, 1960). The root

premise has been that a Supreme Court member's determinations stem from attitudes toward the nature of the system and especially toward either individual freedoms when weighed against government powers or the role of the judiciary when weighed against the role of elected officials.

In a rather strident essay, Professor Mendelson (1963) criticized these studies in jurimetrics on the ground that constitutional interpretation was much more akin to painting a picture than working a sum. He and others were particularly disturbed by the treatment accorded Felix Frankfurter, who seemed to emerge as an anti-civil libertarian when, in fact, the ex-FDR "braintruster" and defense attorney for Sacco and Vanzetti was really a liberal in the "British constitutionalist" sense of maximizing parliamentary responsibilities. This hardly placated the critics (cf. Shapiro, 1966), who reiterated that Frankfurter failed to distinguish between "means" liberties and "ends" liberties, seeming constantly to find a way to support the state interest in controversial free speech and gerrymandering cases as well as "war power" and social issue cases. In short, Frankfurter rarely appeared to appreciate that it is the American Constitution which the Supreme Court must expound, and that he simply was not as sensitive to libertarian values in the context of our culture and traditions as were some others. It perhaps did not occur to most scholars of constitutional politics monitoring this debate that a problem inherent in jurimetric studies was that they were not scientific enough, that these exercises had ignored a central facet of judicial behavior, to wit, the decisional algorithms employed by respective members of the Court.

Figure 4 displays a paradigm of Supreme Court justice performance, which is a remarkable exemplar of the comparisons presented in Figure 3. It is also based on observations and reflections I have gleaned from a reading of hundreds of published opinions as well as the views of many distinguished scholars in the field.4 And again I am talking here of constitutional orientations, the salient interpretative modes of analysis which Court members employ to put meaning into the document, to resolve basic issues in rule definition, deployment, and application. Moreover, the several caveats enumerated above regarding the data in Figure 3 are applicable to Figure 4: not all justices are readily classifiable; not all cases or even a majority of them trigger implementation of relevant algorithms; and the categories delineated here have but a marginal bearing on "greatness." Finally, I reiterate that nothing found in Figure 4 is contrary to-or even relevant to-the consensus entertained in the literature

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CARMEN

Frankfurter

FUNCTIONALISM

Burger McReynolds Black Brennan Holmes Douglas Murphy

STRUCTURALISM HEURISTICISM FIG. 4. A paradigm of Supreme Court justice constitutional orientation by style of decisional algorithm.

regarding the results, the goals, the "outputs," the social and political values of Supreme Court members.

What Figure 4 does show, first of all, is that justices have tended to be either classicists or romantics in the same fashion as chess grandmasters. At the left-hand side of the continuum sit the rationalists or, as I earlier called them, the structuralists. The quintessential case would be Hugo Black, who saw the First Amendment's free speech and press provisions as absolutes (e.g., New York Times v. United States, 1971), who thought the language of the Fourth Amendment could not embrace electronic surveillance (Katz v. United States, 1967, dissenting), and who even denied that the Supreme Court had any power (Griswold v. Connecticut, 1965, dissenting) to keep the Constitution abreast of the times. For Black, the Constitution was a closed book: "Congress shall make no law" meant "no law" (Amendment 1); "houses, papers, and effects" were the only "things" that the state could "seize" (Amendment IV); a right of privacy was unlisted, hence nonexistent; provisions in the Bill of Rights were perforce incorporated into Amendment XIV due process liberty, whether substantive or procedural, whether time-honored or time-bound to the early American experience. When President Truman ordered the army to run the steel mills of the nation during the Korean War, Black's opinion ran as follows: This is either executive power or legislative power; I find that it is legislative power; all legislative power resides in the Congress; therefore, the President has overstepped his authority (Youngstown Sheet and Tube Co. v. Sawyer, 1952). Black's salient decisional algorithm was to reject exceptions to rules.

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Somewhat less extreme would be the "liberal" William Brennan and the "conservative" Warren Burger. For Brennan, free speech and kindred libertarian interests hold sway unless government can satisfy the "structuralist" compelling state interest/minimum infringement doctrine (e.g., Elrod v. Burns, 1976; Sherbert v. Verner, 1963). When prior restraints are at issue, "compelling state interest" means "clear and present danger" (New York Times v. United States, 1971); when sanctions against joining the Communist Party are at issue, "compelling state interest" means "specific intent" (Keyishian v. Board of Regents, 1967); when libel suits brought by public officials and public figures are at issue, "compelling state interest" means "actual malice" (New York Times v. Sullivan, 1964). In equal protection cases, Brennan felt constrained to build three levels of scrutiny: (a) rational state interest; (b) substantial state interest; (c) compelling or overriding state interest (Craig v. Boren, 1976). (Compare such commercial speech cases as Central Hudson Gas and Electric Corporation v. PSC, 1980, where Brennan also finds intermediate scrutiny appropriate.) Even in the watershed death penalty rulings (Furman v. Georgia, 1972; Gregg v. Georgia, 1976), during which he waxes romantic by invoking the concept of "human dignity" and quoting the insights of philosopher Albert Camus, Brennan finds it necessary to assess capital punishment in the light of four guiding principles or tests of validity. For Burger, sensitive establishment of religion questions dissolved into an analysis of his three-pronged test for ascertaining: (a) secular legislative purpose; (b) primary legislative effect; (c) "entanglements" between church and state (Lemon v. Kurtzman, 1971). (Burger's reliance upon "compelling state interests" is illustrated nicely by Wooley v. Maynard, 1977.)

It is fascinating to watch Brennan and Burger draw competing lines in Marsh v. Chambers (1983). Burger swaps Lemon for an alternative structuralist notion-historicism (opening daily legislative session with prayer has been with us for 200 years; hence it is constitutional), while Brennan applies Lemon prong-by-prong, concluding that the practice must fall. (Compare Justice Stevens' functionalist dissent: State designation and subsidization of a Presbyterian minister to be the sole presiding leader of daily prayer at all official legislative gatherings for 16 years constitutes "establishment.")

But the most telling victory for Burger-style structuralism came in Chadha v. INS (1983). There, he invoked the formalisms of the "presentment clause" and the "bicameral clause" to apparently strike down 200-odd legislative veto provisions ranging from the War Powers Act to the Budget Reform Act. The result found the Court jettisoning 50 years of "living constitutional" understanding and usage contrived to retain some semblance of check and balance against the Imperial Presidency, all in the

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name of textual literalism. Brennan's and Burger's salient decisional algorithm was to put up bright-line presumptions in favor of preferred values.

At the right-hand side of the spectrum sit the heuristicians, the instinctualists. The quintessential case would be Frank Murphy, whose jurisprudential sorties into the unknown left even Warren Court protagonists breathless (Roche, 1957). For Murphy, the Constitution was an open book: All manner of "felt needs," (felt by Murphy, that is) could be poured into its provisional vessels (e.g., Thornhill v. Alabama, 1940). Murphy's salient decisional algorithm was to accept only those rules which satisfied his sense of passionate belief.

Somewhat less extreme would be the "liberal" William O. Douglas and the "conservative" James McReynolds. For Douglas, scientific insight and probably constitutional interpretation, too, rested upon the "flash of creative genius" (Cuno Corp. v. Automatic Devices Corp., 1941, p. 91). Douglas' most notable "flash"-an artistic tour de force-was his conception that constitutional freedoms could be found in penumbras formed out of emanations arising from specific liberties, one of those freedoms being the

right of privacy (Griswold). It is significant that when the Court took this

right and applied it to the abortion procedure, employing the "structural" 3-3-3 paradigm to ascertain compelling state interests, the super imaginative Douglas felt constrained to write a concurring opinion placing privacy within a broader tapestry of "felt rights," including, among other "Blessings of Liberty" (Preamble), the control of one's own personality, the

upbringing of children, and the freedom to "walk, stroll, or loaf" (Doe v. Bolton, 1973). For McReynolds, economic liberties were as capacious as noneconomic liberties were for Douglas (e.g., Nebbia v. New York, 1934, dissenting opinion), but his romantic fervor was most vividly expressed in the 1920s precursor of Griswold, Meyer v. Nebraska (1923). In his view, the state could not bar the teaching of the German language in its elementary (including private) schools, because the law abridged essential liberties endemic to an individual's quest for happiness. Douglas' and McReynolds' salient decisional algorithm was to indulge whatever presumptions in favor of preferred values that comported with their heuristic, intuitive sense of

rightness. And astride the center, synthesizing both rationalist and heuristic

algorithms, would be O. W. Holmes. Skeptical of such judicial epiphanies as

"liberty of contract" (Lochner v. New York, 1905, dissenting) and author of the "clear and present danger" bright line (Schenck v. United States, 1919), Holmes was cognizant of the necessity to explore society's "felt needs" in

assessing the validity of a national child labor law (Hammer v. Dagenhart, 1918, dissenting) and was smitten with just enough patriotism when

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determining the scope of the treaty making power to talk rhapsodically about the blood and sweat that have made us a nation (Missouri v. Holland, 1920), blood and sweat that made it reasonable to lock up antiwar socialist leaders during the Red Scare years (Debs v. United States, 1919).

As Figure 3 emphasizes the unique relationship between Steinitz and Lasker, so Figure 4 emphasizes the unique relationship between Holmes and Frankfurter. That Frankfurter considered himself a Holmesian is generally acknowledged. But both Black and Douglas (in each case, incorrectly) also saw themselves as Holmesians; in fact, Mendelson's argument that jurimetrics research owes an intellectual debt to the Black-Douglas constitutional orientation appears spurious in light of the seeming fact that there is no such orientation. What Frankfurter brought to Holmes' preachments was exactly what Lasker brought to Steinitz's preachments, an overt consideration of balance, in this case not positional balance exactly but, rather, its jurisprudential counterpart, interest balancing. Like Steinitz, Holmes talked of principles, e.g., "reasonable man," but like Lasker, Frankfurter made a systematic effort to operationa- lize objectively those principles in refined, elevated form, treating each controversy as presenting its own nuances of interest "struggle." And the human element entered into his decisional calculus as well: the weight of public opinion, the role of legislative and executive leaders as "friendly enemies" of the judiciary in power sharing and power aggrandizement.

For Frankfurter, Supreme Court policy making was science, history (in seeming contradistinction to Lasker's artistic impulse, a possible Frankfur- terian limitation, as I shall later explore), and especially, as with Lasker, politics. Most importantly, Frankfurter also did not succeed in founding a school, again because many of his peers and followers failed really to understand him.5 Mendelson, it turns out, was correct in arguing that behavioral political scientists had mischaracterized Frankfurter's record, but the reason has to do with Frankfurter the functionalist rather than with Frankfurter the civil libertarian. His unique decisional algorithm empha- sized power patterns among factions, totalities of circumstances, basic values as sociopsychological phenomena, the ebb and flow of tradition, as well as political dynamics attendant in theory and practice both here and in kindred systems.6

Since 1908 (Muller v. Oregon), the Supreme Court has recognized the value of constructing a Brandeis Brief to calculate empirically the reach of acceptable legislative standards. What Frankfurter did, though he never specifically said so, was convert the Brandeis algorithm into an algorithm for acceptable constitutional standards. That is, scientific judgment must wring from the totality of data the basic, "living" standards of correlative right and duty which are the essence of the balanced polity, the essence of ordered

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liberty. If we can put to one side his didactic tone (e.g., Dennis, concurring in result), his harping on judicial impotence (Colegrove v. Green, 1946, plurality opinion), and his annoying self-agonies at having to make "tough calls" (Reid v. Covert, 1956, opinion of reservation), and if we also agree that his ideological convictions were in part a product of the same cultural forces that influence the attitudes of all mature, committed people, we are nonetheless left with something rather different and special-a decisional algorithmic style comparable in his constitutional environment to Lasker's in his constitutional environment.7

I cannot emphasize too much that judicial functionalism, like chess functionalism, is indeed a system, not a set of discrete transactional relationships (cf. Bentley, 1950). Thus, Frankfurter's opposition to "preferred position" jurisprudence (Kovacs v. Cooper, 1949, pp. 89-97) stemmed from his conviction that it had become, in the hands of Justice Black particularly, a structural, deterministic, maladaptive device. As Pritchett long ago (1954, p. 249) pointed out, "preferred position" mandates only that the Court put its "thumb on the butcher's scale" in presuming against civil liberties constraints. So understood, the doctrine is functional in nature, analogous therefore to Fischer's dictum that a Bishop is worth 3.25 points whereas a Knight's value is 3 points, this generalization ostensibly being a product of his experience that a Bishop is more influential given the political dynamics of most positions (Fischer et al., 1966, p. 14).

I reiterate: Frankfurter's skill is a biopsychological quality; it comes closer to Homo politicus constitutorius than any Supreme Court Justice has ever come; it represents the most adaptive strategy of its kind that our species has produced. Social and natural scientists have for some years talked of "functional fitness" or its equivalent. For the Supreme Court in Rochin (1952, per Frankfurter), functional fitness would mean that due process of law and similarly capacious freedoms guarantee different values in different times even to the same mature student of the Constitution, one's angle of vision, nurtured "in the spirit of science," shifting as basic notions of right political conduct shift. For Edward S. Corwin (1953), functional fitness would mean that Supreme Court constitutional rulings must not be "bricks without straw"; rather, they should synthesize and resynthesize the operating understandings of our law. For Felix Frankfurter (1957), author and scholar, functional fitness would mean that Supreme Court appointees should be selected with an eye to the intrinsic, abiding needs of the Court itself, needs which might well assume different guises over time as the Justices' place in our system fluctuated over time. For Robert Axelrod and W. D. Hamilton (1981), functional fitness would represent the resiliency of our species' cooperative and norm-building propensities in the face of

competing decisional logics. For Charles Lumsden and Edward O. Wilson

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(1983, p. 76), founders of the genes-mind-culture coevolutionary model, functional fitness would focus on those mental processes best able to cope with a wide variety of "information" stimuli, best able to mount adaptive culturgenic norms. The Lasker-Frankfurter decisional algorithm for questions requiring constitutional politics interpretation is merely another dimension of this wisdom.

Lasker is reputed to have remarked about Tarrasch's play: "He lacks the passion that whips the blood" (quoted in Fine, 1967, p. 46). Of the several traits in Felix Frankfurter's jurisprudential personality which his critics find objectionable, perhaps the one that rankles most is his putative lack of passion (cf. Hirsch, 1981). Only in the face of a direct assault upon his self-image as a civil libertarian did he let his hair down, reminding one and all that he was not oblivious to the plight of insular underdogs for he belonged to "the most vilified and persecuted minority in history" (West Virginia State Board v. Barnette, 1943, p. 646). If functionalism has failed to attract a viable following among the Supreme Court's membership and in respectable intellectual circles over the past quarter century, an important reason may be that Earl Warren "heart" appears preferable to Felix Frankfurter "head." It is a question, seemingly, of poetic justice, imagination, the sense of aesthetic fullness displayed in competing constitutional visions.

Structuralism looks beautiful because it presents constitutional rules in the form of Euclidian symmetry. Heuristicism looks beautiful because it presents constitutional rules as Keatsian lyric. Functionalism looks uncouth because it presents neither the architecture of a Bach fugue nor the melody of a Chopin nocturne. The laboratory of the scientist bustles with untidiness, especially so the laboratory of the social scientist. And the many facets of constitutional interpretation make it social action and social theory, at best social science.

Reuben Fine said of Lasker: His great games are "bottomless wells" (1951, p. 51), the ultimate compliment. I believe this "bottomless" quality is a reflection of Lasker's decisional algorithm and involves not merely level of insight but level of aesthetic quality. Frankfurter's social science (perhaps I should call it "functional jurisprudence"; cf. Smith, 1988) was also a bottomless well: the subtle interplay between free press and fair trial (Pennekamp) with neither value "preferred" nor "deferred" (Kovacs); the weighing and testing of each free speech regulation (even each prior restraint) on its own terms (Kingsley Books; Dennis); the precarious balance between "free exercise" and "establishment" claims, which found him arguing in dissent (as no other member of the Court has yet argued) that door-to-door religious vendors can be made to pay their fair share of the

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local tax load, that children who refuse to salute the flag in public schools for religious reasons can be expelled, but that the taxpayers cannot institute released time programs for sectarian study, even beyond the bounds of the schoolhouse environment, during regular classroom hours (Murdock v. Pennsylvania, 1943; West Virginia State Board v. Barnette, 1943; Zorach v. Clausen, 1952; and see also his concurrences with the dissenting opinions in Everson v. Board of Education, 1947); indeed, the notion that scientific inquiry moves in fits and starts, is a delicate incremental process involving false trials and true roads (Cuno).

The apparent uncouthness in functional logic is once again shown to be the aesthetics of the superficial. Field theory data and the patterns underlying their relationships capture the imagination of those who see "rules of the game" as social science exploration, who can appreciate the added richness of biopolitical and neuroscientific investigation. If Frankfurt- er's doric prose style had yielded now and again to Cardozo's Corinthian flourishes, the congruence between Lasker and Frankfurter would be clear beyond peradventure.

Lasker's passion was in the clash of ideas (Saidy and Lessing, 1974, p. 132). Frankfurter's passion turns out to be the very same addiction. Their insight that constitutional solutions arise out of idea clashes expressed in fields of reciprocal force, that "rules of the game" interpretation is just another battleground for norm adaptation and norm disintegration is the path of modern social science as applied to the public law discipline. It is also the true path of Homo politicus constitutorius. For scholars of judicial politics (cf. Smith, 1988; see also Gibson, 1983) who seek a unitary theory that both looks good and feels good, I submit that a nice balance combining normative and historical concerns, empirical concerns of "group dynamics" and psychometric castes, and game theoretic concerns emphasizing rational actor and, as here, the bioconstitutional perspective, should provide the requisite completeness.

An earlier version of this article was presented as part of a larger investigation, "Homosexual Behavior as Civil Liberty: A Bioconstitutional Politics Analysis," a paper prepared for delivery at the 1987 Annual Meeting of the American Political Science Association, in Chicago.

NOTES

1. The following four paragraphs amplify and embellish the argument presented in Carmen (1987, pp. 197-198).

2. Ordeshook's exemplary study fails to discuss chess logic as a game theoretic format relevant to political science theory-building. But, as he says: "Game theory ... is very much a living discipline, with new developments and insights constantly appearing on the horizon" (1986, p. xiii). There is a tendency among social scientists to believe that game theory includes only

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rational actor exercises drawn largely from the literature of economics. To my knowledge, this paper is the first attempt to apply the game of chess -its sundry formal propositions and decisional modes-to the world of real politics with any degree of rigor and completeness. As the Prisoner's Dilemma model possesses not only rational choice implications but also

biopolitical implications (Axelrod, 1984; Masters, 1983), so chess models possess biopolitical implications because they point the way to adaptive cognitive algorithms. I see Ordeshook's book as the political science equivalent of Reuben Fine's Basic Chess Endings. The central

questions addressed in my paper are really these: What happens in the "middle game" of chess decision making and in the "middle game" of constitutional politics decision making?

3. I have little doubt that our capacity to produce ever-more exotic supercomputers will one day provide us with machines that can challenge, perhaps even consistently defeat, the best players. In no way does that concession undercut my basic argument. Chess computers do not sweat during time pressure and commit costly blunders. Furthermore, the strength of these programs (over and above their faultless recall processes) lies in their capacity to make relatively superficial tactical decisions with incredible speed. Positional values, long-range strategy, aesthetic judgment, and political astuteness remain staples of human performance, man vs. machine results in the foreseeable future to the contrary notwithstanding.

4. Some political scientists may challenge the analysis presented below on the ground that it lacks "rigor." They would insist, no doubt, on case quantification to demonstrate reliability and validity. My methodology, I cannot emphasize too much, is that of chess analysis. Quantitative sorting of Capablanca's games may or may not show, to a statistically significant degree, that he was indeed a structuralist. All chess games are not equal, and constitutional scholars should have learned long ago that all Supreme Court decisions are not equal either. Many games can be won and many legal controversies can be decided without employing any distinctive algorithm. My algorithm is precisely the algorithm Reti used in his much admired studies, as I understand them. I have read and content-analyzed every significant constitutional law opinion written by the justices I discuss, and that will suffice.

5. For those who would nominate John Marshall Harlan to the position of full-fledged Frankfurterian, I confess that I find him essentially a copiest, lacking the master's scientific temperament. Frankfurter, who relied strongly on empirical data in the form of state laboratory experience to demonstrate that the exclusionary rule had not ascended to fundamental fairness stature (Wolf v. Colorado, 1949), would never say, as Harlan said in Mapp v. Ohio, 1961, dissenting, that subsequent shifts in state practice were irrelevant. For those who would nominate William H. Rehnquist, I confess to agreeing with Joseph L. Rauh, Jr., who, testifying before the Senate Judiciary Committee (Hearings, 1986, p. 915), called the Chief Justice-to-be essentially a "statist," lacking any distinctive "means" orientation. In equal protection cases, Rehnquist has denounced "middle tier" scrutiny (Craig v. Boren, 1976, dissenting) and then touted it (Mills v. Habluetzel, 1982); in privacy cases, he has inveighed against the 3-3-3 Roe approach but therein offered as his alternative the "structuralist" idea that abortion choice lacks constitutional status no matter what the circumstances. His opposite number seems to be Thurgood Marshall, whom I would call an "egalitarianist." He has joined Brennan in sundry "compelling state interest" opinions, but given his druthers, Marshall would scrap all tiers and levels of scrutiny, not in the name of artistry or science but, rather, in the name of equal rights (Dandridge v. Williams, 1970, dissenting; Maher v. Roe, 1977, dissenting; San Antonio Ind. School Dist. v. Rodriguez, 1973, dissenting).

These reflections lead me to believe that Figures 3 and 4 are susceptible of further elaboration. For example, some chess masters are offensive players, others are defensive; some are long-range planners, others short-range pragmatists. What are we to do with Reshevsky and Petrosian? And what are we to do with Fred Vinson and Robert Jackson? I

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CARMEN

suspect Vinson was basically a "defensive" judge (cf. Pritchett, 1954) and that Jackson, in the realm of constitutional interpretation, was basically a tactician (cf. Schubert, 1965a).

6. A compendium of his opinions informing my thinking would include, among others, those appearing in Adamson v. California (1947); Dennis v. United States (1951); Haley v. Ohio (1948); Irvine v. California (1954); Kingsley Books v. Brown (1957); Louisiana ex rel. Francis v. Resweber (1947); Pennekamp v. Florida (1946); Rochin v. California (1952); United States v. Rabinowitz (1950); and Wolf v. Colorado (1949).

7. Professor Shapiro's attack on Frankfurter's "balance of interests" modus operandi (1966, pp. 76-107), even when that procedure is stripped from the context of judicial modesty presumptions, is wide of the mark, because Shapiro fails to place Frankfurter's free speech algorithm within his larger decisional algorithm, which includes also his disposition of Due Process Clause, Fourth Amendment, Eighth Amendment, and perhaps other sets of issues (cf. Cuno Corp. v. Automatic Devices Corp., 1941; Wiener v. United States, 1958). Shapiro also questions the manner in which Frankfurter weights his interests, and on that score the Justice is fair game.

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Chess Algoritms of Supreme Court Decision Making a Bioconstitutional Politics Analysis - Ira Carmen

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