Thursday, April 06, 2006

Supreme Court Girls Gone Wild!

Ruth Bader Ginsburg, one of our shining lights on the Supreme Court, recently gave a speech wherein she defended pulling legal arguments out of her ass, or if not out of her ass, from legal decisions made in more enlightened societies, such as the nations of Europe:

... A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote: No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S. Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.

Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no "descendants of Africans [imported into the United States], and sold as slaves" could ever become citizens of the United States.


The probably some Latin term for the error in logic here, but it seems to go something like this: I don't like the result of a decision made by this guy, and we all can look back and see that it was wrong on policy grounds (if not on the grounds of what a Supreme Court Justice is bound to be constrained by), so anything that he said in this particular case, whether it be specific to this case or a more fundamental and general point, is therefore wrong. And you have to be a racist not to see that.

While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

Wow! How about that? Is she admitting that there is actually a democratic political process for correcting injustices foisted upon us by antiquated laws? And here all this time I thought the world's hopes hinged upon the enlightened opinions of 5 SC Justices to save us from ourselves, handing down their decisions as if they are Moses descending Mount Sinai.

... Many current members of the U.S. Congress would terminate all debate over whether federal courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding "No." Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution."

All of this sounds eminently reasonable to me. So what is the argument against it and in favor of selectively and arbitrarily choosing decisions we like from other countries to support votes we want to cast today that otherwise enjoy no support from within the U.S. legal system?

These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe.

Why is it disquieting? On what logical basis? Fueling of the irrational fringe? It would seem to me that unless you want to argue against the point on its merits, you should expect the irrational fringe to be fueled. So Ginsburg gives no rational support for her view, feeling like she is entitled to do whatever the hell she pleases as SC Justice, and it is the fueling of the irrational fringe that is problematic?

A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:

“Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.

This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.”


So if you disagree with her, you clearly want to kill her. And because you want to kill her, you cannot possibly be right about your view.

To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed.

If they are not cited as controlling authorities, what is their relevance to the decision at all? Who needs a common denominator of fairness? If a decision goes against a common denominator of fairness, does that mean it's a problem? Presumably not, as long as it is consistent with controlling authorities. Or would she reverse her decision and ignore controlling authority in favor of a common denominator of fairness. If so, that is a big problem. If not, I guess she just throws these opinions into her rulings to show the world how enlightened she is in contrast to those of us on the irrational fringe. That qualifies her to be a NYT editorialist, no doubt, but I'm not sure that qualifies her for the SC.

5 Comments:

Anonymous Anonymous said...

An interesting tidbit - the descendants of Roger Taney live in MN and continue to carry on the Roger Brookes Taney name - I went to highschool with the 4th and the 5th is on today's playgrounds. It certainly brings into question at least whether the parents have looked into the history of their child's namessake, or just like the sound of "the V".

10:40 AM  
Blogger Professor Vic said...

So, national laws should never be allowed to be interpreted according to any international standards? So, I guess that means that America shouldn't be allowed to impose its laws on other countries either. Of course, this means that we shouldn't be able to try Saddam (or Roger Taylor or any other deposed dictator) for war crimes. Since it was not illegal by existing national law to, for example, execute Kurds for, well, being Kurds, Saddam has done nothing wrong.

Of course, that is the defense of every war criminal. The prosecution generally states that, while the criminal broke none of his own country's laws, his actions are so contrary to those of more enlightened nations like the United States that the criminal should be tried anyway.

So, the decisions that Ginsburg and O'Connor got in trouble for were regarding capital punishment. Our shining lights at the original Constitutional Convention said that punishment can't be cruel or unusual but didn't give any instructions about what that meant. Furthermore, there is every reason to believe that the definition of what is "cruel and unusual" changes over time.

So, how do you decide if something is "cruel and unusual"? You see if other people think is. When a handful of states in the U.S. are the only place in the entire world outside of Iran and N. Korea that allow the execution of a minor, I think that is pretty compelling evidence that that humankind thinks that is cruel and unusual.

I have no problem with a SC justice who writes something like, "This practice was widespread in the past, but over the past 50 years a majority of states, as well as nearly every other country in the world, has banned the practice. Therefore, I contend that by today's standards, this practice should be considered cruel and unusual."

10:43 AM  
Blogger Hatcher said...

You are right - what people consider cruel and unusual is a norm that probably changes over time. And guess what - we have in the states and at the federal level a thing called a legislative branch, wherein those who make decisions have to try to get re-elected from time to time, making them at least partially answerable to 250 million people. It is called a democracy - ever heard of it? In general, it is preferred to a monarchy or an oligarchy.

It is not her place to guage how the popular vote on an issue would go. At the time the Constitution was ratified, no doubt the death penalty for minors went on and continued to go on - so clearly it couldn't be cruel and unusual at the time. If it is now, democratically amend the constitution. That is what was intended.

And frankly I support it for the DC sniper; if that makes me an Iranian mullah, then so be it.

1:58 PM  
Blogger Professor Vic said...

The problem is that democracy doesn't necessarily protect the fundamental rights of the minority which is why a handful of basic rights are enshrined in the Constitution. Had you asked the majority of persons certain cities and states in the south in the 1960s whether a black man should have the right to vote or go out with a white woman or any other number of things, the majority would have denied him these basic rights.

For this sort of reason, the rights enshrined in the Constitution are inherent and not simply left to voters. Of course, the Constitution is not detailed enough for every possibility, so where the Constitution is unclear, we leave that to judges.

It certainly slows down the pace of change (which a conservative should generally like) and leaves the definition of basic human rights out of the hands of wide, rapid mood swings of the electorate.

5:06 PM  
Anonymous Anonymous said...

I am sure your posting was interesting, but I just couldn't read past your statement about Ginsburg pulling stuff out of her ass. The visual in my mind is so disturbing, I think it's going to take a keg of Chartreuse to erase it.

4:24 AM  

Post a Comment

<< Home

Sign up for my Notify List and get email when I update!

email:
powered by
NotifyList.com