Friedman to judges and lawyers: don’t “friend” or “tweet” one another!

Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”

My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.

The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.

The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.

After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”

It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.

And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.

Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:

• To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
• To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
• To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
• To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
• To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
• To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
• To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op_10-007, 12-3-10

David Souter gives a lesson in judging and the failures of Originalism.

Former Supreme Court Justice David Souter recently gave the commencement address at Harvard. In doing so, he set forth clearly and in ways anyone can understand why it is ridiculous to suggest that interpretation of the Constitution merely requires a judge to engage in a “straightforward exercise of reading fairly and viewing facts objectively.” He makes clear that, in his words, such a simplistic view “has only a tenuous connection to reality.” In doing so, he answers “criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.”

The entire speech is worth reading for anyone interested in a high-level lesson in constitutional analysis given in clear, straightforward prose. I will try here to touch on a few of its highlights.

First, Souter points out that many of the Constitution’ guarantees are phrased in such open-ended language that they necessarily will require a large degree of interpretive work to determine their application to new facts in new times: ‘The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.” He contrasts these provisions to provisions that provide bright lines that make decision easy — provisions such as the requirement that Senators be 30 years old.

But, as he makes clear, pointing out that determining, for example, whether a given governmental action satisfies the requirement of “due process” “hardly scratches the surface” of constitutional judging. First, provisions may be clear and yet any consideration of their real implications makes obvious that they cannot be applied literally. Second, as I’ve pointed out before (in discussing why “empathy” plays a far greater part in judging than implied those who would suggest empathy is merely soft-heartedness), determining which facts are more or less significant makes all the difference in the world of a judge:

The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.

To make these points, Souter uses two examples. The first was the Pentagon Papers case, in which the “New York Times and the Washington Post had each obtained copies of classified documents prepared and compiled by government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the publication.” While the Court ruled that the newspapers had the right under the First Amendment to publish the Pentagon Papers, it did not do so on the simple basis that the First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” (emphasis added.) Instead, the Court adopted the interpretation advanced by Irwin Griswold, who responded to the suggestion by Justice Black that the case was a simple one of applying the rule that “no law” means “no law” with the argument that it was not so simple:

Now Mr. Justice, your construction of that is well-known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that that is true.

Thus, the [C]ourt’s majority decided only that the government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the court spoke of examples that might have turned the case around, to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.”

How can it be that “no law” does not mean “no law”? Isn’t that kind of “interpretation” exactly the kind of thing that gives judges a bad name? As Souter makes clear, it is nothing of the sort; it’s the reason we consider judging an activity requiring the utmost in wisdom, intelligence, and experience. The First Amendment guarantee of freedom of the press cannot possibly be absolute because the Constitution provides for a plethora of other individual rights and governmental obligations, no one of which is entirely consistent with the other. As the examples above illustrate, we also have to account for the constitutional authority of the President to provide for national security . As anyone who has considered matters of individual liberty at any depth know, individual liberty is often necessarily at odds with equality. Yet the Constitution guarantees both individual liberty and equality. As Souter explains, an interpretation based on merely believing “no law” in the First Amendment means “no law”

fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law.

Souter’s second example is The Supreme Court’s decision in 1954 in Brown v. Board of Education, in which the Court unanimously held that racial segregation in public schools imposed violated the Constitution’s guarantee of equal protection of the law. As Souter explains, “Brown ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites.”

Souter, significantly, thinks that best explanation for the differences in the results between Plessy and Brown is an explanation that is forbidden to those who would believe the Constitution means now what it did in 1789 and must always mean what it meant in 1789: “the difference between the cases is the dates they were decided.”

How can this be so? It is because the significance of facts differ from judge to judge, and, of course, the significance of facts differs over time. What seemed equal treatment of the races in 1896 — when the contrast was to the recent legality of slavery — no longer seemed equal in 1954, and it would be folly to suggest otherwise:

[T]he generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.

As Souter so succinctly puts the matter: “So much for the assumption that facts just lie there waiting for an objective judge to view them.” And so much for the contention by John Roberts that judging is merely a matter of “calling balls and strikes.” As Souter says, such a simplistic view of what judges do “fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.” “Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Most fundamentally, Souter sees the contrast between his view of the Constitution and the view of those who would have it that judging his way means that he is making it up along the way to evade the plain language of the law as the contrast between those who would impose certainty in a world where there is no certainty. Most importantly, Souter believes that, in the face of uncertainty, we fulfill our national aspirations best by applying reason and judgment to the application of the principles that our nation was established to uphold:

Where I suspect [I] differ most fundamentally[from the those who would apply a simple, literal meaning to constitutional language] is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

Should we even consider foreign law in making our own?

Justices Scalia and Thomas have argued that the the Supreme Court should not even refer to foreign law in justifying and explaining its decisions (except perhaps in interpreting treaties), because it would violate the original intent of the Framers. Scalia has even called invoking foreign precedent a “dangerous practice.”

The refusal to even consider the views of foreign courts has always struck me as nonsensical. An argument’s persuasiveness is measured by its persuasiveness. If an argument based on foreign law is persuasive, why forbid its consideration except from some misbegotten xenophobia?

Paul Finkelman, in “Foreign Law and American Constitutional Interpretation: A Long and Venerable Tradition,” refutes Scalia and Thomas for three principal reasons summarized in the introduction to his article. First, “[i]f the Court is going to rely on history, then surely historians must push the Court to offer the best history it can. It serves no good purpose when a justice claims adherence to history and then ignores vast amounts of historical evidence that do not fit with his preferred outcome.” Second, “[t]he history of the Court in the eighteenth, nineteenth, and early twentieth centuries demonstrates that the Court often used foreign law to help it decide cases that did not involve treaties. . . . Indeed, such use of foreign law might constitute a jurisprudential tool equivalent to stare decisis-it has been legitimized because it has been used for so long and so often by so many different justices.” Finally, “early in our history the Court often used foreign law to suppress liberties. Given this fact, it would be jurisprudential hypocrisy for the Court to turn against the use of foreign law now, when it might be used to protect or enhance liberty and fundamental rights.”

Foreign law, the Federalist Society’s view that the U.S. is better than the rest of the world, and censhorship

I now have a bit better idea of where the opposition to citation to foreign law (discussed in my last two posts) comes from.  It’s the belief that the U.S. is so exceptional there’s no point in looking to the “socialist constitutional courts of Europe.”  That’s what Steven Calabresi, a law professor at Northwestern and co-founder of the Federalist Society writes in the September 20 New York Times:

Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country. . . .

The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.

I think that considering the U.S. so exceptional it has no need to even consider the views of foreign courts xenophobic is, after all, not off base.  The first Chief Justice of the United States Supreme Court, John Marshall, himself stated that the opinions of British courts “are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”

Merely dismissing the decisions Western European countries have reached on profound legal and moral issues (including the execution of juveniles) as the decisions of “socialists” unworthy of even being considered by us “exceptional Americans” is not argument — it’s name calling and egocentricity.  I don’t see what the difference is between law review articles, British courts, or any other source that might be considered the opinion of  wise people who have maturely studied the subject they are opining on.  Foreign court decisions may be politicized, but of course U.S. court decisions, laws, and regulations are exceedingly political too: it’s all politics, whether in the foreign courts, the law reviews, or the U.S. Supreme Court.  By that I don’t mean to be a cynic or a hard core Legal Realist — rather, I mean it’s all argument.  If one is persuaded that the fact the U.S. was the only western industrialized nation that permitted the execution of juveniles made doing so “cruel and unusual,” then why should one not be permitted to consider that fact?  Justice O’Connor explained why she wasn’t convinced by that fact, but she explained why with counter-argument, not by suggesting the argument was illegitimate.

Clarence Thomas, Antonin Scalia, Samuel Alito, and John Roberts all are or have been members of the Federalist Society, of which Professor Calabresi (a former student of Scalia) was a co-founder.  I presume, therefore, that Calabresi speaks for them when he states that the U.S. is just too exceptional (and other countries too “socialist”) to even allow the courts to look at other countries’ laws in determining what U.S. law is or should be.

It is their views I consider un-American.  Their views suggest the courts should be censored.  It is one thing, as I’ve written, to not be persuaded by the views of other countries.  It is censorship, however, to suggest judges cannot even consider those views.  Who better represents the source of American Jurisprudence than John Marshall?  Are no jurists from other countries wise men who have maturely studied the subjects they decide?  And if we forbid reference to foreign law, why not forbid reference to law review articles, which, after all, generally advance the idiosyncratic views of their authors and rarely have any influence whatsoever on an actual lawmaking?

The sooner we get over “American Exceptionalism” and realize we learn more and make better decisions the more we consider the opinions of other wise men who have studied the same subjects we are studying, the sooner we’ll be better off.

But one more word on the Federalist Society.  If you pay attention, its members spout an unerring common line on issues they’ve identified as important.  They sometimes remind me in their methods of organization of Bolsheviks, who went out into the world with their marching orders to spread the Soviet Communist Party’s word.  Professor Calabresi in his letter to September 20th’s Times makes clear the Federalist Society leadership’s view on whether U.S. Courts should even be allowed to refer to foreign law.  Is it any wonder that in the Times article provoking Calabresi’s letter quoted Scalia, Roberts, and Alito in ways entirely consistent with Calabresi’s and the Federalist Society’s views?