Confirmation Hearings for Supreme Court Nominees, Elena Kagan, and the mythical Borking of Robert Bork

During his confirmation hearings, prospective Chief Justice Roberts was questioned intensely about his respect for precedent, particularly in connection with Roe v. Wade. In keeping with the image he plainly intended to project as a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for precedent. As I have previously written, Roberts’ purported respect for precedent didn’t prevent him recently from voting for and writing a concurring opinion in support of the Citizens United decision by the Supreme Court, a decision that overturned 100 years of precedent supporting congressional restrictions on corporate campaign contributions.

I bring this up because of how refreshing I find Elena Kagan’s views on the confirmation process. Ever since the rejection of Robert Bork’s nomination by Ronald Reagan, right wingers have defined the verb “to bork” to refer “to the way Democrats savaged Ronald Reagan’s nominee, the Appeals Court judge Robert H. Bork.” As a result, nominees since Bork have been careful to the point of absurdity to avoid revealing their views on their judicial philosophy or on particular judicial precedent.

But can anyone seriously believe that John Roberts would vote to uphold Roe v. Wade despite insisting, in connection with questions about it, on his respect for precedent? In advance of the Court’s decision in Citizen’s United, Jeffery Rosen wrote in the New York Times that Roberts could “support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down.” Rosen expected the former because “when . . . Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall.”

We now know Roberts was lying.

It is worth keeping in mind, therefore, that  when he was nominated to the Supreme Court, Robert Bork

[P]romised to keep an open mind on the issue of abortion and the right to privacy. Liberal and moderate Democratic and Republican senators did not believe him, and they were right not to. Bork, after he resigned from the federal bench, admitted that he believed Roe v. Wade was wrongly decided and all but explicitly said that had he been on the Supreme Court he would have provided the fifth vote to overturn Roe v. Wade.

Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle for the Federal Courts, 39 U. Rich. L. Rev. 871 (2004-2005), citing Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges at 71 (2003).

It’s worth noting Bork’s precise language in Coercing Virtue regarding Roe v. Wade and a later decision upholding it, Planned Parenthood v. Casey:

It is mind-boggling that citizens were admonished that accept Roe because they”must respect the “rule of law.” Both Roe and Casey are, in fact, crass violations of the rule of law; they are not rooted in any conceivable interpretation of the Constitution, and have nothing to do with “constitutional terms.”

This from the guy who said, in sworn testimony during his confirmation hearings, that he had an “open mind” about the constitutional basis for a right to privacy.

Why was Robert Bork rejected as a nominee to the Supreme Court? It was because his judicial philosophy was so out of tune with what the country expected of a Supreme Court judge in 1987 that the Senate deemed him unacceptable. We could not accept as a Supreme Court judge someone who at the time it mattered — when Congress was considering the legislation — opposed the Civil Rights Acts. We could not accept someone who once wrote passionately that the First Amendment protection of free speech did not extend to art and literature. As reported in 1987:

In 1963 and 1964, as a 36-year-old law professor, Mr. Bork wrote impassioned attacks on legislation to desegregate lunch counters and other public accommodations. He argued that the bill, by invading the liberty of proprietors to turn away blacks, was based on ”a principle of unsurpassed ugliness.” Not until 1973, when seeking Senate confirmation as Solicitor General, did he publicly renounce this view, stated with such unsurpassed surliness.

Even in his latest appearance he declined to revise his pinched view of civil rights. He has criticized some of the Supreme Court’s landmark civil rights decisions for reasons that vary from case to case. The bottom line, however, is almost always the same – unfavorable to minorities.

Free Speech. Repeatedly over the years, Judge Bork has taken a narrow view of the rights of expression. He declared that only the ”core” value of political speech was immune from government restraint. Not until 1984 did he allow as how art and literature might be protected, and then only because they sometimes relate to politics. His conversion, late, is also limited.

Even this limited liberty, in his view, remains utterly at the mercy of the majority when speech becomes advocacy of illegal action. The Court and the mainstream of public opinion have long tolerated strident dissent, reserving punishment for incitement to imminent lawless action. Judge Bork rejects this tradition. Senator Arlen Specter of Pennsylvania extracted from him a ”commitment” to apply settled law rather than his own view. But even such assurances failed to persuade the Judiciary Committee’s ablest questioner, who has decided to oppose the nomination.

So let’s get over this nonsense that Robert Bork was somehow wronged — Robert Bork was denied appointment to the Supreme Court because his judicial views were too far out of step with what the U.S. had come to expect from its Constitution in connection with protection against racial prejudice and restrictions on expression.

What does this have to do with Elena Kagan? Kagan believes that the Senate should explore a nominee’s views, that the confirmation hearings should not continue to be what they have been since the days of Robert Bork — silly, ritual dances that permit the likes of John Roberts to evade completely straight answers to questions that are of central importance to the operation of the Court. As Kagan has written:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy–muted, polite, and restrained–but all that good order comes at great cost. And what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate–that their insistent questioning of Judge Bork was justified, if at all, by his overt “radicalism” and that a similar insistence with respect to other nominees, not so obviously “outside the mainstream,” would be improper. This belief is not so often or so clearly stated; but it underlies all that the Judiciary Committee now does with respect to Supreme Court nominations. It is one reason that senators accede to the evasive answers they now have received from five consecutive nominees. It is one reason that senators emphasize, even in posing questions, that they are asking the nominee only about philosophy and not at all about cases–in effect, inviting the nominee to spout legal theory, but to spurn any demonstration of what that theory might mean in practice. It is one reason that senators often act as if their inquiry were a presumption-as if they, mere politicians, have no right to ask a real lawyer (let alone a real judge) about what the law should look like and how it should work. What has happened is that the Senate . . . has let slip the fundamental lesson of the Bork hearings: the essential rightness–the legitimacy and the desirability–of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 619, 941-942 (footnotes omitted), reviewing Stephen L. Carter, The Confirmation Mess (1994).

So Kagan doesn’t have much of a paper trail. David Brooks therefore writes that she “is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess.” Consequently, he finds her “kind of disturbing.” It’s almost funny. Brooks wrote when John Roberts was nominated that

I love thee with the depth and breadth and height my soul can reach. I love thee freely, as men strive for right. I love thee because this is the way government is supposed to work. President Bush consulted widely, moved beyond the tokenism of identity politics and selected a nominee based on substance, brains, careful judgment and good character.

What inspired this poetic passion from Brooks? According to Brooks, Roberts “is principled and shares the conservative preference for judicial restraint.” And “[a]nybody who is brilliant during Supreme Court grillings, as Roberts is, will be impressive at confirmation hearings.” Finally, Roberts “has shown that character and substance matter most.”

So Kagan — who has put on the record her belief that Supreme Court nominees should address the issues that will come before the Court — is “disturbing,” but Roberts, who lied about being a conservative consensus builder with a deep respect for precedent has “substance, brains, careful judgment and good character.”

Yeah, right. Here’s my suggestion to all those who think Kagan’s a “blank slate” — why don’t you withhold judgment until the confirmation hearings. Let her answer questions, questions she’s on record stating she thinks are legitimate and should be answered. It’s more than we got from John Roberts.

Supreme Court decides, 5-4, that those public courts aren’t so public after all.

From the L.A. Times:

By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking video coverage of the trial of California’s Proposition 8, with a conservative majority ruling that defenders of the ban on same-sex marriage would likely face “irreparable harm” if the proceedings were broadcast to the public.

“It would be difficult — if not impossible — to reverse the harm of those broadcasts,” the court wrote in an unsigned opinion. The witnesses, including paid experts, could suffer “harassment,” and they “might be less likely to cooperate in any future proceedings.” The high court also faulted U.S. District Judge Vaughn Walker for changing the rules “at the eleventh hour” to “allow the broadcasting of this high-profile trial” that will decide whether gays and lesbians have a right to marry in California.

Though the opinion is unsigned, it clearly speaks for Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. . . .

The majority cited newspaper accounts from the last year to bolster its contention that opponents of same-sex marriage have been “subject to harassment,” including “confrontational phone calls and e-mail messages” and even “death threats.” Under the court’s rules, the justices do not intervene in pending cases unless they are convinced that the appealing side has a strong legal claim as well as evidence of “an irreparable harm” if the court fails to act.

[Justice] Breyer [in the dissenting opinion joined in by Justices Stevens, Ginsburg, and Sotomayor] scoffed at the notion that the witnesses in this case would face harm, because they have gone on television in the past to advocate their views. “They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a ‘yes’ vote on Proposition 8,” he said.

Do we need to protect Exxon’s right to free speech?

There’s an interesting and largely ignored set of precedents at play in the campaign finance case the Supreme Court heard arguments in yesterday. The focus is on whether Chief Justice Roberts — after having emphasized during his confirmation hearings the importance of precedent and the extraordinary circumstances that would require it to be overturned — will vote to overturn over 100 years of limits on corporate donations to political campaigns on the grounds that limiting corporate contributions to political campaigns is an unconsitutional limitation on free speech. Here’s my bet (which I strongly recommend you don’t take): Roberts will overturn the precedent and vote to overturn the campaign finance restrictions.

But there’s an even older set of precedents that ought to be subject to review: the precedents that conclude that corporations are “persons” just like you and me; accordingly, corporations are entitled to free speech rights, protection against unreasonable searches and seizures, and all the other rights guaranteeed to individuals under the Constitution.

There’s nothing self-evident about concluding that a corporation is entitled to these protections. One reason is what the right wing of the Court identified years ago in concluding that limitations could be made on a union’s power to contribute money to political causes: an individual union member’s views might difffer from the union’s. Just so, an individual stockholder or director’s views might differ from that of the corporation’s.

More importantly, though, the idea of a corporation is a convenient legal “fiction” — really a metaphor — that courts employ because it is, well convenient for purposes of certain legal analysis. But when we confuse the metaphor for the reality we can get into trouble. As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

So think twice before you conclude that the campaign finance case is all about overcoming restrictions on free speech, which is the position argued on the left by the ACLU and on the right by the Wall Street Journal:

Hillary Clinton may end up the accidental heroine in the battle to reassert First Amendment rights over restrictions on political speech. Yesterday, the Supreme Court heard a historic reargument in the case of Citizens United v. Federal Election Commission, and the Justices have a chance to revisit two of their greatest offenses against the Constitution.

The case involves a political documentary made during last year’s Presidential primaries about then-Senator Clinton called “Hillary: The Movie.” It wasn’t what you’d call a glowing portrayal. Funded by a group called Citizens United, the film was intended to be shown on cable TV during the primary season, a profile that got it caught in the net of campaign finance reform laws that control political advertising.

At stake are two major precedents in the campaign-finance canon, Austin v. Michigan Chamber of Commerce (1990) and a portion of McConnell v. FEC (2003). In Austin, the Court ruled the government may ban corporations from engaging in what’s known as “express advocacy” directly from corporate treasury funds, requiring the funds to be channeled through a separate political action committee. In McConnell, the Court built on that decision to uphold most of the Bipartisan Campaign Reform Act, a.k.a.

the 2002 McCain-Feingold law, including a section that banned “electioneering communications.”

. . . The First Amendment was designed specifically to protect speech in just the kind of scenario “Hillary: The Movie” presents—the right to engage in the political process and to challenge and comment on candidates. Citizens United is the ideal opportunity to overturn a major swath of bad law.

No, the First Amendment was not “designed to specifically protect speech” by business organizations — it was intended to protect speech by individuals. It’s an amazing argument from those who would normally argue that we need to stick to the Original Intent of the Framers, but it shows too that Original Intent is merely a means to a political end, not a reasoned position.

A poliitician would be an excellent replacement for Souter.

Gordon Silverstein has a terrific column explaining why President Obama should appoint a politician to the Supreme Court vacancy created by Justice Souter’s retirement. I think he’s spot on in understanding why, as Obama explained, it’s important that the future Justice “understands that justice ‘is also about how our laws affect the daily realities of people’s lives.’” Silverstein explains that many of the Court’s cases involve the Constitution’s impact on political and legislative functions, that none of the current justices has any legislative experience, and that it would make sense to have someone on the Court who really understands what the real-world consequences of its decisions:

Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century. 

I agree too with Silverstein that most law professors would not identify these as the Court’s needs. But there is too much abstraction on the Court these days — too much concern with doctrinal purity and not enough with the practical consequences of that doctrine. Take campaign finance for example. Many opponents of campaign finance regulation ground their stance in the belief that the right to free speech forbids restrictions on the right to give money to political campaigns. They equate money and speech. But if  the ways unregulated spending affects political speech is  in fact to restrict the access of multiple viewpoints (by, fo example, crowding out of what in essence is a limited range of communication the interests of less well funded voices), then the equation of money with speech makes no sense — if  it limits the voices heard, unregulated campaign finance limits free speech. A politician will certainly have a better sense of the reality of the situation than any sitting member of the Court.

Like most legal questions, we cannot definitely answer this question without considering its practical effects. I hope, therefore, that Obama strays from the style we’ve seen for too long: appellate judges and lawyers with strong academic support. A politician would be a great alternative.

Yes, Kevin, empathy is part of judging well, and Oliver Wendell Holmes thought so too.

Kevin O’Brien of the Plain Dealer expresses the view of many who mock President Obama’s desire that his Supreme Court nominee have “empathy”:

I have scoured my pocket copy of the Constitution. Couldn’t find a single reference to “empathy,” though. I tried searching an online version, too, but when I typed “empathy” in the search window, the only answer I got back was, “Did you misspell something?”

I looked up the oath of office that Souter’s successor will take. I don’t see “empathy” there, either, . . . 

O’Brien and his ilk have a stunted view of what it means to be a judge. Applying the law is not like doing algebra; instead, it is far more often (at least in cases so contested they get to the Supreme Court) a matter of making difficult judgments that involve weighing values and consequences in the real world. It hardly is ridiculous to consider “empathy” a valuable quality in making these judgments. One need not look far into the past to see a case where an inability to empathize with what Congress plainly intended led to a ridiculous (and soon overturned) outcome.

But you need not take my word for it.  Oliver Wendell Holmes, Jr., Supreme Court justice and one of the most influential intellects in U.S. legal history, made clear in The Path of the Law that it is a fallacy to think judges can apply only logic to the law and that a keen sense of the social impact of one’s decisions is fundamental to sound judging (emphasis added):

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. . . . The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. . . .

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”

. . . There is a concealed, half conscious battle on the question of legislative policy, and if anyone thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus [always, everywhere, and for everything]. . . .

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. . . . I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.

I love good lawyers because you can disagree with them and they won’t take your disagreement as a personal attack.

In the New York Times, Maira Kalman’s “And May it Please the Court” is a wonderful graphic narrative of her musings on, among other things, law, a visit to the Supreme Court, and Ruth Bader Ginsburg.  One panel of the piece does not begin to do it justice, but the one below makes a wonderful point that I try all the time to get across to my students — when you and your adversary treat each other as professionals, practicing law is a joy. There is no point in doing it any other way.  You can’t take your adversary’s disagreement personally — she is paid to disagree with you, and it’s her professional duty to do so.  But when your adversary doesn’t treat you professionally, you have to fight back too.  Not by descending to her level, but by being tough, better prepared, and smarter.  At any rate, I am glad Ms. Kalman saw the legal practice at its best on that day she visited the Court. And I wish more people I know, especially those who have law degrees and consider themselves legal experts, would realize disagreement is not hostility. I guess I shouldn’t be surprised that Ms. Kalman wonders how people handle the idea that their adversaries are not their enemies.

Justice Roberts: I am the best qualified to do what I do.

From the New York Times:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development may be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, “the practice of constitutional law – how constitutional law was made – was more fluid and wide ranging than it is today, more in the realm of political science.”

I’m not sure I could disagree more strongly. As I’ve emphasized in recent weeks (here, here, and here), I think judging is first and foremost doing justice. A variety of viewpoints (including those of “former governors, legislators, cabinet members, law professors and practicing lawyers”) is far more likely to lead to justice as it is defined in the real world than the abstractions of appellate judges.

In fact, I think one of the principal weaknesses of the Supreme Court as it is presently constituted is the lack of experience the Justices have with the real world — even with the real world in a legal sense. The judges were not trial lawyers for regular everyday people; they were not trial judges. All appellate judges ever see are written documents (the arguments of lawyers, the documentary and physical evidence submitted in trial courts, and transcripts of testimony in lower courts). They don’t see witnesses. The only people they see in their professional lives outside their own chambers are lawyers during oral argument. Very few cases, in fact, get appealed. The vast majority have too little at stake to make any appeal financially practicable.

In short, a Court consisting only of people whose principal occupations have been as corporate lawyers, government lawyers, and appellate judges is a Court about as divorced from real life as possible. Is that really the ideal Court? Of course, Justice Roberts would think so. I’ve always believed that the vast majority of people who succeed in any given system believe that system is a true meritocracy. If Justice Roberts was an appellate judge, and if the Supreme Court consists of only appellate judges, is it really any surprise he thinks appellate judges make the best Supreme Court Justices?

Bush v. Gore lives, as it should.

As the New York Times observes today, one of the most controversial parts of the Supreme Court’s 2000 decision in Bush v. Gore was the Court’s pronouncement that the decision would have no precedential effect: “”Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

In our legal system, courts are bound to follow decisions of, among others, the Supreme Court.  The principle, known as stare decisis, is fundamental to the common law system we adopted from England.  The Supreme Court in Bush v. Gore, therefore, was stating that for that case only, stare decisis would not apply.

Why did the Court make this unprecedented pronouncement?  Many believe it was because the equal protection grounds supporting the Court’s decision, if applied in future cases, would open the doors to lawsuits that never before had been considered viable.  The requirement of equal protection of the law is, to put it mildly, a complicated subject.  Quite plainly, the law makes legitimate discriminations between groups every day.  Accordingly, a legitimate claim that a law denies equal protection requires some sort of reasonable belief that the law might have been enacted to discriminate on illegitimate grounds.

The Supreme Court in Bush v. Gore had no reason at all to believe that the Florida Supreme Court’s recount order it was reviewing had been intended to give greater weight to one preferred class of voters over another.  Thus, the Supreme Court did not want the equal protection principles it was applying to supply legal arguments in future cases it was not prepared to hear — I seriously doubt, for example, that a state’s decision to locate most of its waste disposal facilities in areas that are predominately populated by minorities or the rural poor would satisfy any existing equal protection analysis.  But if Bush v. Gore‘s reasoning does apply, who knows?

The New York Times observes that despite the Supreme Court’s proclamation, courts are beginning to apply the reasoning of Bush v. Gore. That in itself is interesting.  What I find more interesting is that there was not more outrage on the point at the time.  Stare decisis is generally understood to control courts by limiting their rulings to the principles enunciated in earlier decisions.

But stare decisis also provides a control over the court that makes a decision.  If its decision is baseless, later courts will say so and overrule it.  The Supreme Court could not face later courts, or even a later incarnation of itself, declaring that the equal protection principles applied in Bush v. Gore were baseless.  Accordingly, it tried to declare that any future consideration of whether they were baseless was off limits.

Right wingers often, and falsely, declare that liberal judges are activists who make law and conservative judges merely apply the law as it exists.  But I can think of no more “activist” decision than Bush v. Gore, where the Court tried to declare “this is the law for this case, and something else will be the law for another case.”

What’s so wrong about looking to foreign law?

An Australian correspondent writes, in response to my post yesterday

What’s surprising to me as an Australian is that there is any controversy at all. There’s a huge difference between looking at various sources for examples of reasoning and acknowledging established local precedent as representing the law. From 1st year our students are taught the difference between persuasive and binding authority. Isn’t it healthier to be transparent about the reasoning process rather than pretending that judges aren’t sometimes influenced by personal ideology or politics or God forbid, high level judicial reasoning from othe jurisdictions with a common legal heritage?

He also reminds me of a law review article written here in the States over ten years ago that, on the same grounds, questions the basis for any objection to using foreign law for guidance in making U.S. law.  In “All the World’s a Courtroom, Judging in the New Millennium,” 26 Hofstra L. Rev. 273 (Winter 1997), Shirley S. Abrahamson and Michael J. Fischer opened with the description of an oral argument in a case before the Wisconsin Supreme Court:

In the . . . case, the defendant, a one-time farmer who had been diagnosed with Alzheimer’s disease, struck and injured the head nurse in a health care center where he was confined. The court was asked to resolve one issue: Should the farmer be judged by the traditional tort standard of the reasonable person, or given that he was not capable of either controlling or appreciating his conduct, should he be absolved from civil liability altogether? 

In most states, including Wisconsin, the courts ha[d previously] concluded that a mentally disabled person must be held to the same objective standard of care as someone without such a disability. Thus the mentally disabled are generally held liable for their acts under the reasonable person standard.

American legal scholars have sharply criticized this traditional American rule. They point out that applying the reasonable person rule to people with mental conditions, in effect, imposes liability without fault, even though the law of negligence is ordinarily grounded in fault, and even though liability is incompatible with modern views and treatment of the mentally ill. 

Counsel for the farmer urged the Wisconsin Supreme Court to adopt a rule that persons should be held liable only when they know what they are doing.  And like most lawyers urging a court to adopt a new rule, counsel for the farmer sought to reassure the court of the wisdom of change by pointing to law from other jurisdictions, specifically Florida  and Canada, which seemed to buttress her point. If the new rule works there, her reasoning went, then surely it could work in Wisconsin.

Florida, the Canadian case was an entirely different matter altogether. “Petitioner is not aware,” the brief noted archly, “if Canadian case law has precedential value in the United States.” 

Counsel, of course, knew quite well that it does not. But by the same token, neither does Florida law have precedential value in Wisconsin. Why then did the nurse’s counsel single out Canada? Probably because the law of foreign countries is treated today with the suspicion that may have once marked some state courts’ approach toward the law of their sister states.

Today our state courts accept the logic behind Justice Cardozo’s famous remark, in a case involving New York and Massachusetts law. New York is “not so provincial,” Cardozo wrote, “as to say that every solution of a problem is wrong because we deal with it otherwise at home.” But while state courts routinely look to the decisions of their sister jurisdictions for the insights and persuasive value they potentially possess, the nurse’s counsel obviously 

viewed looking across our national borders as an “inherently suspect activity.” 

I was perplexed. Why did the farmer’s counsel’s citation of Canadian law signal desperation and trigger derision? Why, I wondered, should case law from Canada–an English-based, commonlaw jurisdiction geographically closer to Wisconsin than Florida–not be considered persuasive?

Professor Johns and I ask the same question, but now of several members of our country’s Supreme Court, including its Chief Justice.  As far as I can tell, there’s no good reason other than a pandering to the jingoism running strong through our current politics.  One correspondent has taken strong exception to me in essence calling Chief Justice Roberts a xenophobe, and I don’t think he personally is.  Nevertheless, his political support depends on pandering to xenophobia.  I can think of no other reason to close off consideration of arguments and reasoning that may be helpful to resolution of difficult legal questions.

Foreign law and legal argument

I wrote a post over two years ago on the point, but the legitimacy of U.S. courts referring to foreign law is an issue again today because the New York Times published a front page article discussing the waning influence of the U.S. Supreme Court’s decisions on the court decisions of other nations.  One reason, according to the article, is the steady outcry from some quarters against any reference to foreign law in the U.S. courts. 

I find this outcry absurd and positively contrary to the tradition of Anglo-American law.  The common law system, unique to the Anglo-American world, is one that builds law case by case, recognizing that to achieve justice the unique facts of each case require consideration of the arguments of the parties directly affected by those facts.

The key to my point is that the courts hear arguments.  They consider prior precedents, the views of experts, and even the rantings of political idealogues.  There’s nothing wrong with doing so.  There should be no limit on what courts can refer to and rely on; rather, faced with deficient evidence or authority, the answer is correct evidence or authority.  Thus, as I explained two years ago, when a judge relies on the above-referenced political idealogue’s screed about the purported litigation explosion in reaching her decision, the answer isn’t to forbid her from doing so.  The answer is for lawyers and judges to point out that the facts don’t support her argument, that in fact 86% of trial judges surveyed consider frivolous litigation anything from “no problem” to a “small problem,” while only 2% consider it a “big problem.”

Thus, when Anthony Kennedy wrote the majority opinion in the Supreme Court case holding that executing juveniles is “cruel and unusual punishment” under the 8th Amendment to the U.S. Constitution, it was perfectly legitimate of him to point out in support of his conclusion that ”evolving standards of decency that mark the progress of a maturing society” could be measured in part by the fact that no other Western industrialized country executes juveniles.  One may  disagree that U.S. standards are identical to those in other countries.  Justice O’Connor did so in that decision, arguing that “too few states had recently enacted such laws to convince her that the country generally had ‘set its face’ against the juvenile death penalty.”

The disagreement between Kennedy and O’Connor is the kind of disagreement courts resolve every day, but to not merely disagree with Kennedy but seek to entirely cut off reference to any source for one’s legal arguments is contrary to any notion of law I understand.  I expect it from (influential) right-wing wackos who think judges should be impeached for even considering foreign law in reaching their decisions.  I don’tf from our most recently appointed and confirmed Supreme Court Justices, John Roberts and Samuel Alito:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and JusticeSamuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

You can just as easily find “anything you want” in virtually any source courts regularly cite.  As I stated above, the answer to bad argument is good argument, not censorship.  There is nothing special about foreign court decisions except, it seems, an ever-growing U.S. fear of everything “foreign.”

Looking at Guantanamo

I mentioned in my post last Thursday that Margaret Boden, a cognitive scientist in Great Britain, has described three principal ways law is creative. The first she calls “Combinational Creativity,” which she describes as “putting familiar ideas together in unfamiliar ways.”

Putting familiar ideas together in unfamiliar ways is perhaps the type of creativity law students come to know best. As first year law students quickly learn, law is not a set of abstract rules imposed on reality. Rather, legal “rules” tend to be conditional – they are developed case by case as justifications for the results the courts deem just in those cases. But any time a new case arises that presents a new set of facts not foreseen by the courts that made the earlier decisions, the “rules” articulated in earlier cases may no longer seem just and appropriate.

The U.S. Supreme Court was faced with the need to put familiar ideas to work in a way previously unanticipated in its recent decision in Boumediene v. Bush. The Court in Boumediene decided that prisoners held at the U.S. base in Guantanamo are entitled to invoke the constitutional writ of habeus corpus to challenge their detention as “enemy combatants.” In plain English, once a person’s liberty has been taken away, he is entitled to challenge his imprisonment by requiring the government to prove before a court that it has a legitimate basis for holding him. As the New York Times has explained, the Bush administration has taken the position that it needs very little to justify holding prisoners indefinitely as “enemy combatants”:

The government sets a frighteningly low standard for itself, saying it needs only “some evidence” that a citizen has “associated” with a terrorist organization “bent on hostile acts” to hold him indefinitely.

One reason the Bush administration established its “detention center” in Guantanamo was plainly so it could argue that prisoners held there were outside U.S. territory and therefore beyond the geographic reach of U.S. courts. Thus, the administration’s thinking went, even if the only evidence against a prisoner was the word of some Afghani who had captured him that he was a member of the Taliban or Al-Qaeda, the prisoner would not be able to challenge that evidence or even present contrary evidence of his own in any court. As the Supreme Court explained in Boumediene, the administration’s argument was based on the unique status of Guantanamo, over which the U.S. holds complete control under a perpetual “lease” from Cuba:

Guantanamo Bay is not formally part of the United States. And under the terms of the [1903] lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” . . .

The United States has maintained complete and uninterrupted control of the bay for over 100 years. . . . And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

The Court also recognized that prior law did not establish how a territory with such a status should be treated. Thus, it concluded that the historical examples of hybrid territories both sides presented to the Court failed to answer to the question before the Court. Interestingly, the Court compared the absence of convincing historical precedent to the situation it faced in 1954 in Brown v. Board of Education:

[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment , discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”) . . . .

So what did the Court do? It decided that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” that is “absolute” and “indefinite.” The U.S. as a a matter of fact exercises all the control over Guantanamo it would if it legally owned it rather than held it under a perpetual lease. In addition, it is impossible to consider Guantanamo Cuba’s territory in connection with the U.S. detention center, even though technically Cuba is the territory’s “sovereign,” because Cuban law does not apply on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station.”

In short, if U.S. law does not apply to the prisoners held at Guantanamo, no law does. That is exactly what the Bush administration had wanted, and it is exactly what the Supreme Court rejected in Boumediene.