Abstract
This tragicomic drama exposes some of the lessons that contemporary criminal jurisprudence in the United States can draw from Aeschylus’s Oresteia. It suggests that Aeschylus hit the mark in his treatment of several basic issues which continue to plague the administration of criminal justice in our time, and that the U.S. Supreme Court has wandered very far from that mark.
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Notes
- 1.
Kenneth Burke, Form and Persecution in the Oresteia, 40 The Sewanee Review 377, 394 (1952) [hereafter, Burke].
- 2.
Burke at 380.
- 3.
For varying illustrations of this view, see Anthony J. Podlecki, The Political Background of Aeschylean Tragedy 63 - 81 (University of Michigan Press 1966); Brooks Otis, Cosmos and Tragedy: An Essay on the Meaning of Aeschylus (University of North Carolina Press 1981) [hereafter, Otis]; Richard Kuhns, The House, The City and the Judge: The Growth of Moral Awareness in the Oresteia (Bobbs-Merrill 1962) [hereafter, Kuhns]; Harry L. Levy, The Oresteia of Aeschylus, 4 Drama Survey 149 (1965). Paul Gewirtz endorses it, finding in The Oresteia “the aspiration for a wise resolution of conflict” through “the possibility of closure that a legal judgment provides” – (“Before law – without courts – there is revenge after revenge, a cycle of violence without end. … With law, there is the possibility of an ending, both in individual cases and in systemic struggles. The establishment of Athena’s court and legal process becomes the central event that propels the action toward the transfiguring harmonies of the play’s close”) – although he also notes that “[l]aw’s image in the Oresteia gains its richness … from other features,” Paul Gewirtz, Aeschylus’ Law, 101 Harvard Law Review 1043, 1046 (1988): principally the notions that “retribution must play a central role in a system of criminal justice” (id. at 1047 – 1048), and that Aeschylus’s law is “a highly gendered phenomenon” (id. at 1050) combining “female privilege and female subordination within the legal order” (id. at 1054). See also Burke at 383 – 385.
- 4.
David Cohen, The Theodicy of Aeschylus: Justice and Tyranny in the “Oresteia,” 33 (number 2) Greece & Rome 129, at 129 (1986).
- 5.
Burke at 384.
- 6.
This satyr play is a low-budget production. It cannot give actors speaking parts when their roles, predetermined by proclivity or principle, will not affect the outcome or arouse dramatic interest. (Except Zeus.)
- 7.
O’Sullivan v. Boerckel, 526 U.S. 838 (1999). See Coleman v. Thompson, 501 U.S. 722, 738 – 739 (1991): “State courts presumably have a dignitary interest in seeing that their state law decisions are not ignored by a federal habeas court, but most of the price paid for federal review of state prisoner claims is paid by the State. … It is the State that pays the price in terms of the uncertainty and delay added to the enforcement of its criminal laws. It is the State that must retry the petitioner if the federal courts reverse his conviction. If a state court, in the course of disposing of cases on its overcrowded docket, neglects to provide a clear and express statement of procedural default, or is insufficiently motivated to do so, there is little the State can do about it.”
- 8.
“Unless federal proceedings and relief – if they are to be had at all – are reserved for ‘extraordinarily high’ and ‘truly persuasive demonstration[s] of “actual innocence”’ that cannot be presented to state authorities … the federal courts will be deluged with frivolous claims of actual innocence.” Herrera v. Collins, 506 U.S. 390, 426 (1993) (concurring opinion of Justice O’Connor).
- 9.
See, e.g., Swain v. Pressley, 430 U.S. 372, 383 (1977), expressing “the settled view that elected judges of our state courts are fully competent to decide federal constitutional issues, and that their decisions must be respected by federal district judges in processing habeas corpus applications.”
- 10.
489 U.S. 288 (1989).
- 11.
Schriro v. Summerlin, 542 U.S. 348, 352, 355 – 356 (2004).
- 12.
The U.S. Supreme Court has repeatedly held that its decisions announcing new rights to jury trial are nonretroactive because “‘“[w]e would not assert … that every criminal trial – or any particular trial – held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.”’” Summerlin, 542 U.S. at 357, quoting DeStefano v. Woods, 392 U.S. 631, 633 – 634 (1968). And it has repeatedly asserted that due process “certainly does not establish any right to collaterally attack a final judgment of conviction.” United States v. MacCollom, 426 U.S. 317, 323 (1976); see Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); Murray v. Giarratano, 492 U.S. 1, 8, 13 (1989).
- 13.
Cf. Martha C. Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy 5 – 7, 25 – 50 (Cambridge University Press 1986) [hereafter, Nussbaum].
- 14.
“[T]he king spoke up. He swallowed his grief / and said, ‘It is bitter, bitter, being the chief. / To slay my own little girl? With my hand to pour / her virgin’s blood on an altar and go to war? / And yet, if I fail / we shall never sail / to Troy, as we have pledged to each other to do, / and I shall dishonor myself and each of you.’” David R. Slavitt, ed. & trans., Aeschylus, 1: The Oresteia, Agamemnon (University of Pennsylvania Press 1998) [hereafter, Agamemnon], lines 157 – 164.
- 15.
See, e.g., Benjamin Apthorp Gould Fuller, The Conflict of Moral Obligation in the Trilogy of Aeschylus, 8 (number 4) Harvard Theological Review 459, 476 (1915) [hereafter, Fuller]; N. G. L. Hammond, Personal Freedom and its Limitations in the Oresteia, 85 Journal of Hellenic Studies 42, 47 – 48 (1965); Hugh Lloyd-Jones, The Guilt of Agamemnon, 12 (number 2) The Classical Quarterly, New Series 187, 190 – 197 (1962). The problem of having to choose between doing one or the other of two evil acts is different than the problem of having to choose between doing acts that will cause one or the other of two evil consequences. In the latter situation, a hedonic calculus can resolve the problem and produce an equation that will prove the choice right. In the former situation, whichever choice one makes leaves one having done an evil act. For human beings and for non-omnipotent Gods, there are some acts that are self-evidently and innately evil, without regard to their consequences. Consideration of their consequences may make them necessary evils or may make them aggravated evils, but they remain evil acts in themselves. The roster of inherently evil acts doubtless does not coincide precisely with those that Anglo-American law has, at any given time, classified as malum in se, but the pervasive recognition of the malum-in-se concept attests to the strength of our moral need to recognize that some such roster has meaning. For purposes of this case, there is no need to explore the outer reaches of the roster. It suffices to recognize that the killing of a human being and the extended physical confinement of a human being are inherently evil acts.
- 16.
“second chorister: You’ve killed the king! / You’ve murdered your husband! What are we in the city to make of this? And what can happen now? / People will hate you! Fear you! What is your plan / now? Are you going off somewhere into exile?”
“Clytemnestra: Whatever for? You threaten me with exile? / You talk to me, now, of the people’s hatred? / What about then? What about him? What hatred / did any of you have for a man like that / who killed his own daughter? A sacrifice! / He couldn’t find a sheep? So he kills his child? / My child! From out of my body! He couldn’t wait / for the goddamned winds to shift for his ships to sail on?” Agamemnon, lines 1185 – 1197.
See Fuller at 467: “The murder of Agamemnon by Clytemnestra is presented as the outcome of a more acute and at the same time more evenly balanced conflict of obligations than that which actuates the sacrifice of Iphigeneia. … The Greek audience did not need instruction in the duties owed a husband by his wife.”
- 17.
See, e.g., Kuhns at 31.
- 18.
David R. Slavitt, ed. & trans., Aeschylus, 1: The Oresteia, The Eumenides (University of Pennsylvania Press 1998) [hereafter, The Eumenides], line 90.
- 19.
The Erinyes are not simply hounds or simply prosecutors. That their form of justice “was a partial justice … does not cancel or destroy the fact that it was justice, because it followed an inflexible rule, a rigid application of principle, limited though that principle might be from the standpoint of a broader principle.” Otis at 92.
- 20.
Orestes: “I invoke … Athena. She will defend me, not with the spear she can wield but reasoned justice.” The Eumenides, lines 255 – 256. First Fury: “And we come for justice, to assert our legitimate claim. … We punish murder. And drive away all those who commit this crime.” Id. at lines 370 – 372.
- 21.
Electra, imploring Zeus to intervene, says: “If you withdraw from the business of mankind, / men will diminish, but gods will do so too.” David R. Slavitt, ed. & trans., Aeschylus, 1: The Oresteia, The Libation Bearers (University of Pennsylvania Press 1998) [hereafter, The Libation Bearers ], lines 237 – 238.
- 22.
“Who will call on us now in their righteous anger? / … What fear will … [mere] judicial bodies inspire / in evil men to stay their hands? Through awe / have we maintained the world’s fundamental law.” The Eumenides, lines 449 – 456.
- 23.
Her situation is “an inversion of the original dilemma” of Orestes. “He by a refusal, she by a willingness, to take sides would be committed to the same morally indefensible partisanship.” Fuller at 476. Orestes says: “[I]f I did nothing, / if I failed to act, then I should share in the evil.” The Libation Bearers, lines 914 – 915.
- 24.
28 U.S.C. §§ 1254, 1257; United States Supreme Court Rule 10. See, e.g., Margaret Meriwether Cordray & Richard Cordray, Strategy in Supreme Court Case Selection: The Relationship between Certiorari and the Merits, 69 Ohio State Law Journal 1 (2008).
- 25.
“This is our purpose. For this we were made / and are authorized, and no gods can interfere. / We are sovereign here.” The Eumenides, lines 333 – 336.
- 26.
“I will convene a tribunal on Ares’ rock / to endure through the ages, the Areopagitic / Court, where we may arrive together at justice.” The Eumenides, lines 430 – 432. And see id. at lines 613 – 618.
- 27.
See Nussbaum at 32 – 47.
- 28.
“I killed him, / struck him down. I don’t deny it! I’m proud / of what I’ve done!” Agamemnon , lines 1154 – 1156. The chorus describes her as “crowing aloud in her pride.” Id. at line 1240. See also The Libation Bearers, lines 671 – 672.
- 29.
“Our vengeance is heaven sent.” The Eumenides, line 314. “[W]e are steadfast and stern as we protect / and maintain the laws of heaven. This is our great / delight and the duty to which we are called by Fate.” Id. at lines 352 – 354.
- 30.
“[T]here now is guilt, / but I shall contrive somehow to live with that.” The Libation Bearers, lines 897 – 898; and see id. at lines 393 – 394, 831 – 833. “For what I suffer, / there is no recommended therapy or treatment. / What I feel is … giddy, with joy and horror dancing together. / … and it’s hard to speak, or breathe, or even think … / But the one thought I cling to is that what I did / was necessary and right.” Id. at lines 903 – 909. “Apollo commanded / that I should do this thing. He and I together / are answerable jointly for what I did. / Justified or not – I leave that to you. Whichever way you decide, I accept your verdict.” The Eumenides, lines 412 – 416.
- 31.
The Eumenides, line 685.
- 32.
The Eumenides, lines 699 – 701.
- 33.
“Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court’s decision … ‘involved an unreasonable application of’ [federal] … law”; “‘an unreasonable application of federal law is different from an incorrect application of federal law.’” Harrington v. Richter, 562 U.S. 86, 100-101 (2011). See, e.g., Yarborough v. Alvarado, 541 U.S. 652, 665 (2004); Lockyer v. Andrade, 538 U.S. 63, 75 – 76 (2003): “It is not enough that a federal habeas court, in its ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state court was ‘“erroneous.”’”
- 34.
See James S. Liebman & William F. Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 Columbia Law Review 696 (1998). Zeus’s decree in Felker v. Turpin, 518 U.S. 651, 663 – 664 (1996), is cavalier, if not disingenuous.
- 35.
See Ayers v. Belmontes, 549 U.S. 7 (2006).
- 36.
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, … set aside the conviction of Joshua Richter … . This was clear error.” Richter, 562 U.S. at 91-92.
- 37.
Cf. The Eumenides, lines 716 – 718.
- 38.
Cf. Anthony G. Amsterdam, Selling a Quick Fix for Boot Hill: The Myth of Justice Delayed in Death Cases, in Austin Sarat, ed., The Killing State: Capital Punishment in Law, Politics and Culture 148, 157 – 158 (1999).
- 39.
“[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664.
- 40.
See Anthony G. Amsterdam & Jerome Bruner, Minding the Law 1 (Harvard University Press 2000) [hereafter, Minding the Law].
- 41.
See Minding the Law at 357, note 7.
References
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Amsterdam, A. G., & Bruner J. S. (2000). Minding the Law, Cambridge, MA: Harvard University Press.
Burke, K. (1952). Form and Persecution in the Oresteia, The Sewanee Review, 40, 377.
Cohen, D. (1986). The Theodicy of Aeschylus: Justice and Tyranny in the “Oresteia”, Greece & Rome, 33, no. 2, 129.
Cordray, M. M. & Cordray, R. (2008). Strategy in Supreme Court Case Selection: The Relationship between Certiorari and the Merits, Ohio State Law Journal, 69, 1.
Fuller, B. A. G. (1915). The Conflict of Moral Obligation in the Trilogy of Aeschylus, Harvard Theological Review, 8, no. 4, 459.
Gewirtz, P. (1988). Aeschylus’ Law, Harvard Law Review, 101, 1043.
Hammond, N. G. L. (1965). Personal freedom and its Limitations in the Oresteia, Journal of Hellenic Studies 85, 42.
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Amsterdam, A.G. (2015). A Satyr Play. In: Marsico, G. (eds) Jerome S. Bruner beyond 100. Cultural Psychology of Education, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-25536-1_20
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