"THE TIMOROUS MAY STAY AT HOME": JUDGE CARDOZO'S PROPHECY IN CONTEMPORARY UNITED STATES SUPREME COURT JURISPRUDENCE.

• Author: Pomerance, Benjamin

"Blessed are the meek, for they will inherit the Earth." - Matthew 5:5 (1) "He is the most merciful of those who show mercy." - Quran 12:92 (2) "The timorous may stay at home." --Judge Benjamin Cardozo, Murphy v. Steeplechase Amusement Co. (3) In 1929, the New York State Court of Appeals rendered its decision in a personal injury lawsuit brought by a man injured in an amusement park. (4) Steeplechase Amusement Company, which operated a park at Coney Island, featured a thrill ride known as "The Flopper," in which riders attempted to stand on a conveyor belt moving on an upward incline. (5) Part of the purported fun of the ride came when the riders, unable to maintain their balance due to the belt's motion, tumbled to the ground. (6) For one rider, however, the fun came to a swift end when the jolting conveyor belt sent him falling forward, causing him to suffer a fractured kneecap. (7) Angered by his injuries, this rider--characterized by the court as "a vigorous young man"--sued Steeplechase Amusement Company, arguing that the ride was "dangerous to life and limb" and pointing to his fractured patella as a demonstration of The Flopper's perils. (8)

Yet the plaintiff, despite an initial victory in the First Department of New York State's Appellate Division, found no sympathy at the New York State Court of Appeals. (9) Writing for the court's majority, Chief Judge Benjamin Cardozo declared that when this "vigorous young man" boarded The Flopper on that fateful day, he had assumed all risks of injury. (10) "The plaintiff was not seeking a retreat for meditation," Cardozo wrote. (11) "Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took a chance of a like fate, with whatever damage to his body might ensue from such a fall." (12)

Had Cardozo ended there, posterity might have known little of Murphy v. Steeplechase Amusement Company and the debates about The Flopper in the halls of the New York State Court of Appeals. Cardozo, however, had an uncanny knack for taking relatively obscure cases and elevating them to judicial immortality through his prescient language. (13) This case proved to be no exception to that trend, for Cardozo concluded the pivotal paragraph of his opinion with words that resounded far beyond the confines of this dispute, a single sentence that judges and lawyers have recited in personal injury cases for nearly a century since: "The timorous may stay at home." (14)

In the personal injury context, Cardozo's overall opinion in Murphy makes sense. A person who goes to an amusement park seeking a thrill inherently assumes the risk of injuries resulting from that thrill. (15) All evidence indicated that The Flopper was well-known as a ride where riders tumbled against each other and onto the ground. (16) No credible evidence, according to Cardozo's findings, suggested that the ride had malfunctioned, nor did the facts of the case indicate that any other form of misconduct had occurred on that day. (17) This was simply a matter involving a young man who knowingly and willingly boarded a risky ride and suffered the consequences of his actions when that risk ended in physical harm. (18) Centuries earlier, the Roman jurist Ulpian had formulated the maxim Volenti non fit injuria--roughly translated as "to a willing person, an injury is not done"--regarding Roman citizens who voluntarily placed themselves in positions of heightened risk. (19) In the case of the injury resulting from The Flopper, Ulpian's ages-old doctrine continued to maintain its time-honored relevance. (20)

Today, however, this strain of thought from Ulpian to Cardozo has morphed in new and broader directions. (21) "The timorous may stay at home" is no longer merely a phrase applied to plaintiffs who voluntarily assumed risk in a personal injury matter. (22) Instead, it is now a central ideological pillar of rhetoric from politicians, commentators, and even from the United States Supreme Court itself. (23) None of these parties tend to reach back to 1929 and quote Cardozo's language directly, but the principle that certain places in this world are simply not fit for "the timorous" has become a feature of American political and legal life. (24)

The expansion of this concept has brought aspects of Cardozo's fateful sentence into realms far beyond "a vigorous young man" choosing to board an overtly risky amusement park ride. (25) In the last United States Supreme Court term, decisions emerged in which a majority of Justices inherently applied this notion that America is a land where the timorous can stay at home to fundamental facets of daily life. (26) From these decisions, we learned that the Court views the United States as a nation where those who wish to carry a concealed weapon in public can do so, and those who are skittish about being in a public place where people may be carrying concealed weapons might just as well stay at home. (27) Similarly, we learned from the Court that people who fear a workplace where their co-workers are not vaccinated against the deadliest pandemic to hit this nation in a century might as well stay at home, as the federal government in most cases cannot prevent unvaccinated individuals from coming to that workplace. (28)

We discovered, too, that those who fear a world of environmental degradation may stay at home, too, as the Environmental Protection Agency lacks the authority to regulate technologies that could make a crucial difference in the fight against environmental harms unless Congress specifically spells out the technologies that they can use--even though abundant prior decisions from the Court held that they would defer in matters of this nature to the subject-matter expertise of such agencies. (29) Lastly, we learned during this most recent Supreme Court term that women should simply stay at home unless they are willing to risk the violent act of unconsented-to sexual intercourse, or if they are willing to risk death or irreversible medical harm that could arise from a pregnancy, as the Court rejected decades-old right-to-privacy principles and opened the door for states to enact laws banning abortion in all instances, even in cases of rape or incest, and even when necessary to protect the life or health of the mother. (30)

In none of these cases did the Court center its opinion around the specific words of Cardozo that "[t]he timorous may stay at home." (31) Still, this basic principle, expanded to new heights, underlies each of these landmark decisions. There is no direct evidence that Cardozo ever intended for the timorous people of this nation to stay at home in contexts beyond the knowing assumption of voluntary risks, such as falling while riding on The Flopper or, to use another example that Cardozo raised in Murphy, getting struck by one's antagonist while fencing. (32) Indeed, Cardozo went out of his way to state the limits of his declaration in the later paragraphs of his Murphy opinion. (33) "A different case would be here if the dangers inherent in the sport were obscure or unobserved, or so serious as to justify the belief that precautions of some kind must have been taken to avert them," he explained. (34) A few sentences after that, he added: "A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change." (35) From these statements, we can glean that Cardozo did not intend to absolve all actors from all liabilities toward "[t]he timorous." (36) On the contrary, Cardozo's opinion examined what responsibility the amusement park bore in the plaintiffs accident occurring. (37) Only after finding that the amusement park had taken all reasonable precautions toward riders on The Flopper did he issue his ruling in the park's favor. (38)

Today, though, many of the nation's politicians, media commentators, and Supreme Court Justices have implicitly taken up Cardozo's denunciation of the timid in America--but without Cardozo's apparent recognition that the law in many instances still needed to protect the timid, too. (39) The cases described a couple of paragraphs earlier are the latest federal steps in this direction. (40) America, in the mindset evidently shared by many in power today, is a land that is precisely what the last line of its national anthem declares: "the home of the brave." (41) Those who are timorous rather than brave--including those who fear concealed weapons in public spaces, transmission of a deadly virus in the workplace, environmental depletion, violations of one's bodily autonomy, and irrevocable risks to one's own life or health--may stay at home. (42)

This Article briefly examines the factors that brought us to this place, as well as the paradoxes of this mindset in American society today. Part I summarizes the political and cultural rise of the implicit belief that in America, the timorous may simply stay at home, making way for the courageous rugged individualists of American lore. (43) Part II moves from the political and cultural spheres into the judicial realm, focusing both on the language of the four United States Supreme Court cases described above and on the impacts that these cases can have upon the people, both brave and timid, of the United States. (44) Part III explores a paradox that arises from this mindset, one that surprisingly ensures that some members of "the timorous" class of Americans do not need to stay home while relegating other Americans, who are timorous in different ways, back to the shadows. (45) Lastly, the Article concludes with some closing thoughts about where today's political, media, and judicial rhetoric has brought us, focusing on the question of whether the United States truly should continue to be a place where laws and policies command, even in the most basic settings of daily life, that the timorous may stay at home. (46)

1. AMERICA AND THE...