April 22, 2005

Not incredibly outrageous.

Justices O'Connor, Scalia, and Breyer took part in another one of those discussions about whether it's okay -- or "incredibly outrageous" -- for judges to refer to foreign law. We've already heard plenty from Scalia and Breyer on the subject, so the article (in the NYT) focuses on O'Connor:
''This is much ado about nothing,'' she said in response to a question by moderator Tim Russert of NBC. ''Our Constitution is one that evolves. What's the best way to know? State legislatures -- but it doesn't hurt to know what other countries are doing."
O'Connor also said she reads 1,500 pages a day. Mostly lawyers' briefs, I presume. The life of a judge! Do you envy it?

32 comments:

Nick said...

Thats interesting... and here I thought our Constitution evolved by beign amended through the democratic process. Silly me.

Gerry said...

"''Our Constitution is one that evolves."

We should amend the Constitution to take out the whole section on amending the Constitution then, seeing as it is completely unnecessary.

Ann Althouse said...

The interesting thing to me about that quote is that she removes her own agency. She doesn't say "I have decided to interpret the Constitution so that it can evolve." It's just out there, evolving, and she observes that it has evolved. Oh, look at that. It's become something different. She ought to defend the notion of a living Constitution, so that people like Nick who haven't studied law will be able to understand how it is justified.

Nick said...

That's exactly right Ann... I haven't studied law... yet I still have to live by it don't I? My only experience is having to take Business Law in college... which I only remember some of.

And while I certainly like to think I know a few things about how the constitutional process works... and the fact that it does evolve not only through amending... but also through interpretation... its important to have the discussion in a frank and clear way, so we can all understand what is happening, because we all have to live by the consequences, not just the lawyers.

Nick said...

And I shouldn't have gone on commenting here... especially in my normally sarcastic tone. Sorry about that. I've hopefully been a little more clear in my post. Have a great Friday.

Ann Althouse said...

Nick, you're welcome to comment. I was genuinely chiding O'Connor for not making her comment in a way that anticipates your criticism (which is, of course, the same criticism Justice Scalia makes).

leeontheroad said...

The Times article quotes O'Connor in response to "a question," so we don't know from this what the question was or is, of course; perhaps we can't fairly gauge her response.

In any case, O'Connor's response does indeed remove her -- and any -- agency from the way in which new interpretation changes (I would priggishly argue) not the Constitution per se, but our understanding and thereby our and other's application of its principles to the way we organize ourselves.

O'Connor's reponse is also non-linear. "It's much ado about nothing." To what does "it" refer? I can infer Russert asked her soemthing like "What do you think of the criticism of referring to/citing international law when forming a SCOTUS opinion?"

It's not necessarily non sequitir to then immediately make a statement about "an evolving Constituton," though we must infer a connection. But, then, to what does "what's the best way to know" refer? to know WHAT exactly?

I'm hoping the transcript will appear here.

I would like a jurist such as O'Connor to explicate her views of the Constitution as "evolving," as well as by whose agency she thinks that happens-- and should, or not, and,if so, within what parameters.

Pancho said...

I had the opportunity to hear Justice Sandy speak last year out here in the boondocks. I'm not sure what to make of her as a supreme jurist, but she sure had an interesting early life. I just had to rather like her personally.

Chris said...

I guess reading so much is the price of getting to have everyone else read your stuff.

Since the evolving Constitution question came up, I wanted to put in a plug for my pet theory that the Constitution partly evolves and partly stays the same. The basic idea was stated by Justice Sutherland for the Court in Euclid v. Ambler Realty (1926):

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

I think the distinction between meaning and application can be made more compelling if we pay attention to developments in the philosophy of language. Frege's distinction between sense and reference, Carnap et al's distinction between intension and extension, and Mill's distinction between connotation and denotation, amount to something similar. Our constitutional language has a fixed meaning/sense/intension/connotation, but an evolving application/reference/extension/denotation. That's what I think, anyway.

twwren said...

Ann:

The "Living Constitution" is the result of nine idividuals, unelected and appointed for life, using Marbury v. Madison as a sword rather than a check to make sweeping policy decisions in frustration of the other two elected branches of government.

Cervus said...

twwren:

And when the other two branches of government enact laws that are beyond their Constitutional authority... what happens? What recourse have we but to go to the courts?

SteveR said...

The problem with what she said is that it could easily be taken out of context (or perhaps read correctly) and provide fuel for those who are suspicious of the way the court acts. Enough of that occurs based on decisions the court makes without these kind of "casual" remarks. I suppose it does "evolve" and should evolve as Chris points out but its not "much ado about nothing"

Chris said...

I agree with SteveR--it's much ado about something where there's a defensible but neglected middle ground. But the issue is still pretty important.

Reggie said...

"She ought to defend the notion of a living Constitution, so that people like Nick who haven't studied law will be able to understand how it is justified."

I'd love to hear her defend it so people like me who have studied law can understand how it is justified. She has had lots of chances. Instead we get dreck as in her concurrence in Michael H: "I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis." That's right of course, if you believe the constitution might suddenly evolve into a new form. But that belief is nonsense. The constitution's words say what they say, what changes is the judges. And unless they somewhere have found the authority to treat their own pronouncements as authoritative on the nation without support from the written Constitutional text, acting as though they have that authority is illegal and unconstitutional. The only possible source of such authority is the Constitution, and unlike later on (Dred Scott, Lochner, Griswold, Dickerson, etc.) the early supreme court and the founders did not think the Constitution gave the Court such authority and would have found such a suggestion outrageous. One can argue the Constitution is not law, but merely suggestive principles to guide the Supreme Court in a common law making enterprise, but nobody does, and such an argument would be rejected out of hand by the citizens of this country.

Sandy ought to be impeached with the rest, save Thomas and Scalia.

LegalXXX said...

(diff Chris than above) I just happen to like how the "evolving Constitution" only tends to "evolve" in one direction. Funny that.

As for the defense of the "living Constitution"--it's only defensible in the most cynical sense since such a theory would never permit a reinterpretation that counters the prevailing left-liberal interpretations that such a philosophy requires.

So yeah, it's defensible--it's just not principled (insofar as a commitment to democratic principles is concerned).

Too Many Jims said...

I suppose whether or not you believe the recent decisions citing foreign authorities are "incredibly outrageous" depends on how you view the use of those citations. If you believe (as Scalia, Delay, and several commenters here believe) that the citations are made as "part of the basis for the Court’s judgment" then you believe they are bad. If you believe these citations merely reflect "respected and significant confirmation" of the Court's judgment then you are not necessarily offended by the citations.

I actually went and read the decision in Roper v. Simmons as a result of this thread. I know that Scalia is an incredible legal mind, an excellent writer and, from what I have heard, a genuinely engaging personality. Reading this decision reminded me how derisive he can be. I don't read many Supreme Court cases anymore, does anyone know if he picks and chooses when he "respectfully" dissents (as opposed to merely "dissent")?

Ross said...

We can all point to examples of judicial overreach, but for the folks who think the words of the Constitution have a meaning that can and should be preserved in amber for over the centuries, please explain the meaning of the following adjectives: "Due" (as in process); "cruel" and "unusual" (as in punishment) "excessive" (as in bail or fines); "appropriate" as in legislation; "speedy" (as in a trial); "unreasonable" (as in searches and seizures).

The Consitution is full of vague principles that call for judgment calls, and those will evolve with society, for good or ill. What was unusual or unreasonable in 1789 may be viewed in a different light in 2005. What's so, ahem, unreasonable about that?

Richard Fagin said...

I don't think the reference to foreign sources as basis for a Supreme Couret decision is "extremely outrageous" or any measure of wrongfulness even close. What IS extremely outrageous is the Court construing the meaning of the Constitution without logical principle. Adding reference to foreing law only incrementally affects the complete error of such construction. I asked in another post how a particular crime, committed one day by the very same person (on his 18th birthday) under essentially identical circumstances could be punishable by death, could not be so punished on the previous day. It is impossible to draw any inference other than such result is purely and entirely the personal policy preference of the Justices who maed such holding.

Cabbage said...

Ross,

That's a good list of constitutional words. I've got one to add: "penumbra"! I'm just having trouble sourcing it in the document. Maybe O'Connor can help me locate it. . .

Chris said...

(the Euclidean sense-reference Chris, that is)

Other Chris,

Remember that according to Euclid, constitutional evolution isn't only one-way; "the scope of their application must expand or contract to meet ... new and different conditions."

Ross,

You question that "the words of the Constitution have a meaning that can and should be preserved in amber for over the centuries" on the basis of vague constitutional language. But even if you're right about how these terms should be interpreted--that is, if they require judgment calls that will change over time--that would just mean that the word "reasonable" means--permanently--"reasonable according to the current sensibilities of society." Even if terms like "reasonable" require an assessment of current prevailing sensibilities, they require such an assessment in virtue of their unchanging meaning or sense.

Wade_Garrett said...

In my view, too many people on the right complain about the Supreme Court justices being "unelected" and "unaccountable" and "appointed for life," while at the same time complaining about how the judges don't strictly adhere to the wishes of the Founders. The founders wanted a independent judiciary, free from political intimidation and influence, filled with judges steeped in the common law tradition. Lifetime appointments help ensure independence. That is something on which everybody agrees.

Most of the world envies our independent judiciary. The Supreme Court currently has five conservatives and four liberals. That seems pretty fair to me. Would you rather have it be otherwise? Would having more conservative justices result in more fairness? Would having more liberal judges result in more fairness? I don't think so.

The right-wing talk-radio crowd uses the word "activist" as if it was a synonym for "liberal," except for the occasions on which they use it as a synonym for "gay." They look past the fact that Supreme Court activism put George W. Bush into office in the year 2000, which made conservatives happy, and Supreme Court restraint in the Terri Schiavo case is what touched off the current wave of anti-judiciary hysteria.

Perhaps they should come up with a consistent meaning for their codewords before they throw them around. Or perhaps they shouldn't use codewords at all. Or perhaps they should just trust a desperate, power-hungry exterminator from suburban Texas to interpret the Constitution for them. After all, I'm sure that is what the Founders would have wanted.

Cabbage said...

Terrence, I have a hard time believing that your post is serious. Tell me the truth, is this gerry or nick having a lark?

You write, "The founders wanted a independent judiciary, free from political intimidation and influence, filled with judges steeped in the common law tradition. Lifetime appointments help ensure independence."

From there you leap to the absurd contention that the founders also wanted a judiciary "independent" of the constitution they put so much effort into drafting and having ratified. If the founders wanted a completely free-flowing "common-law" regime unmoored from a stifling written constitution, its not like they didn't have a model for such a system (not that that would necessarily be a bad system). The framers had a complete understanding of an unwritten constituion/common-law regime [Britain if you haven't caught on yet] and they consciously rejected it in favor of having a written constitution.

Historical illiteracy aside, you write: "The Supreme Court currently has five conservatives and four liberals. That seems pretty fair to me. Would you rather have it be otherwise?" Well, if we had 7 vegans and only 2 carnivores on the bench would they be entitled to declare the consumption of buffalo-burgers unconstitutional? If you have a system where the text of the constitution has no import (or is deemed so flexible that "white" can be interpreted as "black" or even "rutabaga"), then the ideologies of the justices really do matter.

You then write: "They look past the fact that Supreme Court activism put George W. Bush into office in the year 2000." I'm assuming that you are not simply a precocious toddler and that you were in fact alive and politically aware in 2000. If that's the case, your problem may not be historical illiteracy but rather a complete detachment from reality. Given your apparent intimate familiarity with "right wing talk radio" do you honestly expect us to believe that there has been a moment in time post 1973 or so when conservatives didn't want to reign in what they percieve as over-reach by the "imperial" courts?

Finally, you write "Or perhaps they shouldn't use codewords at all. Or perhaps they should just trust a desperate, power-hungry exterminator from suburban Texas to interpret the Constitution for them." Let's see, we have "codewords" and a somewhat frothing discussion of Texan exterminators. Listening to this all to typical rhetoric from the left I'm starting to get the sense that it might be a good time to invest in some tinfoil futures....

Ann, if this was too uncivil, please let me know and I'll tone it down (or even stop posting if you'd like). My problem, and I admit I have a problem, is that I'm only ever tempted to post when I see something that sets me off.

Cabbage said...

I hate blogger! :)

The quote I was trying to pull for my fifth paragraph (that post was way too long - I'm sorry!)reads: "They look past the fact that Supreme Court activism put George W. Bush into office in the year 2000, which made conservatives happy, and Supreme Court restraint in the Terri Schiavo case is what touched off the current wave of anti-judiciary hysteria."

Wade_Garrett said...

My point was not that the Founders wanted a judiciary independent of the Constitution, only that they wanted a judiciary independent of the sort of political pressure that Congress is trying to bring to bear on them today. The Founders didn't want members of the House to threaten impeachment, or make thinly-veiled threats of violence against Supreme Court justices every time a ruling differed from the teachings of the Bible.

When a judge rules against prayer in schools, that judge is labelled activist. When a judge prevents a woman's parents from getting in the way of her right to go off feeding tubes, they are labelled activist. I could go on . . . these decisions aren't activist by any objective rationale; they are only objective because Limbaugh and Falwell and others decide to call them liberal. They call names because they can't prove how these decisions deviate from the rule of law.

twwren said...

Jon;

Whilest Ross is looking for Penumbra, you should try sourcing "Judicial Review"? Somewhere between Marbury and Griswold, Judicial restraint became Judicial activism.

Too Many Jims said...

"Cabbage said...
I hate blogger! :)"

Here here. Something we all can agree on.

Cervus said...

twwren:

While Hamilton does not use the words "judicial review" outright in Federalist #78, I would like to point out that it established the role of the principle in the Constitution itself.

That being said, I do not believe that judges are being "activist". For one, they can only rule on cases brought before them. Whether a judge is "activist" seems to be purely a matter of perception. Read this article titled Addicted to the Courts.

Neuborne concludes:

"Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic--which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance."

I don't believe the judicial system is the one being activist. I put the blame on those using the courts, rather than the democratic process. Even if their grievances have merit and can be remedied via the judical system, the question is whether it should be used that way.

twwren said...

Jon:

Thank you. You make my point.

My point is that Judicial Review, because it was not addressed in the Constitution (notwithstanding Hamilton's lobbying efforts to the New York Delegation) and because the Judicial branch determined in Marbury the reach of its own powers vis a vis the other two branches, should go hand in hand with Judicial Restraint. Nine individuals finding a Right of Privacy in the Penumbra of the 4th, 5th, 6th and 14th amendments after 175 years to the contrary is not Judical Restraint

Cervus said...

twwren:

Answer me this (And I'm going to repeat myself). When the other two branches of government enact laws that are beyond their Constitutional authority, or infringe on the rights it protects... what happens? If the courts do not have the power of judical review, what other solution is there?

twwren said...

Jon:

I am not arguing against judicial review; I am arguing for judicial restraint. Finding a fundmantal right, after 175 years, in the penumbra of other enumerated rights is not, in my opinion, interpreting the constitution; it is expanding it. And, it is not judicial restraint.

If you do not understand, I am sorry. I cannot be any clearer.

Cervus said...

twwren:

Thank you for clearing that up.

boringmadedull said...

There is absolutely no way that Justice O'Conner reads 1500 pages per day. At least, not if a) these are technical, legal papers, and b) if there are more than 3 words per page.

1500 is a heap o pages, baby. I'm a pretty fast reader, and to plop down a 300 page Wodehose novel (I know in advance that Jeeves will pull Bertie's bacon out of the fire) is the work of an afternoon, or day. And nothing critical is riding on my understanding.

1500 pages? seems somewhat exagrerated. Unless we are willing to concede that she doesn't understand what's on the pages she's turning.

Not that far fetched, given some of the decisions the Court has reached.