As Senator Whitehouse of Rhode Island astutely observed, if confirmed, Judge Sotomayor will not only be the first Latina on the Supreme Court, but will also be the sole member of that body who has served as a district court judge. Justice O’Connor, the first woman to be appointed to the Court, similarly brought a somewhat different legal background to her task than her colleagues. She had previously been both a state legislator and a state court judge, and commentators have often suggested that her experience in those state capacities helped shape her views on federalism and her respect for state sovereignty. What, then, might be the implications of a Supreme Court Justice with district court experience?
One answer might serve to explain the conciseness of the Ricci v. DeStefano summary order that has been the subject of so much controversy, and about which Ricci himself is slated to testify. In that summary order, the three-judge panel affirmed the rationale of what it called the “thorough, thoughtful, and well-reasoned opinion of the [district] court below.” During her confirmation hearing, Judge Sotomayor has emphasized the length and comprehensiveness of that district court opinion, and she has expressed respect for the efforts of the trial court. Judge Sotomayor’s experience on the district court may have contributed to a view that, although the determinations of law below are not entitled to the same degree of deference as those of fact, it was not necessary to supplement or supersede the otherwise sufficient reasoning of the district court judge in the Ricci case.
Just as those in favor of a rigorous conception of federalism place significance on local determinations, and members of the founding generation feared fact-finding in the Supreme Court because it might contravene the independence of regional juries, we might see considerable value in granting more weight to the decisions of district courts. It is, after all, the district court judge who assesses all the evidence in person, and who is best positioned to evaluate the entirety of the circumstances of the case. Confirming someone who can appreciate the vantage point of the district court judge would certainly add another welcome element of diversity to the Supreme Court.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Wednesday, July 15, 2009
Foreign Authorities (Ancient and Modern)
When Senator Coburn today asserted, after asking Judge Sotomayor whether states have the right to determine the definition of death, that he did not actually expect her to answer the question, but simply to pay attention to it in her deliberations, he seemed to be conceding the likelihood of her confirmation. If this is the case, his interventions can be read as having a purpose apart from determining whether or not Judge Sotomayor should sit on the Supreme Court. Instead, Senator Coburn rehearsed for the American public a set of hot-button issues raised by the Supreme Court’s jurisprudence, including whether technological advances should affect the understanding of viability in the abortion context, whether there is a constitutional right to self-defense that underpins an individual right to bear arms, and whether American courts should cite foreign law.
The many rounds of debates about the citation of foreign law that have already occurred may render legal scholars somewhat fatigued with the topic, but it remains a point of public controversy. In her remarks, Judge Sotomayor lucidly and succinctly illuminated how much of the discussion consists in people talking past each other. As she emphasized, there is a public misunderstanding of what “using” foreign law means to most judges; rather than relying on foreign legal authority as a precedent or to influence the outcome of a case interpreting the U.S. Constitution or a statute, judges simply “use” foreign legal principles or decisions as helpful aids in thinking through domestic legal problems.
Had she been so inclined, Judge Sotomayor could perhaps have cited Senator Coburn’s own opening remarks to illuminate the distinction. Towards the conclusion of his statement, after expressing concern about the justices’ invocation of foreign authority, Senator Coburn explained that Aristotle defined law as “reason free from passion,” and endorsed that view. Are we to deduce from this remark that Aristotle was an American, or is it more plausible to think that our legal system shares certain general principles with its foreign counterparts, whether ancient or modern?
The many rounds of debates about the citation of foreign law that have already occurred may render legal scholars somewhat fatigued with the topic, but it remains a point of public controversy. In her remarks, Judge Sotomayor lucidly and succinctly illuminated how much of the discussion consists in people talking past each other. As she emphasized, there is a public misunderstanding of what “using” foreign law means to most judges; rather than relying on foreign legal authority as a precedent or to influence the outcome of a case interpreting the U.S. Constitution or a statute, judges simply “use” foreign legal principles or decisions as helpful aids in thinking through domestic legal problems.
Had she been so inclined, Judge Sotomayor could perhaps have cited Senator Coburn’s own opening remarks to illuminate the distinction. Towards the conclusion of his statement, after expressing concern about the justices’ invocation of foreign authority, Senator Coburn explained that Aristotle defined law as “reason free from passion,” and endorsed that view. Are we to deduce from this remark that Aristotle was an American, or is it more plausible to think that our legal system shares certain general principles with its foreign counterparts, whether ancient or modern?
Saturday, July 19, 2008
Selective Exceptionalism?
Adam Liptak’s series on “American Exceptionalism” in the NY Times, the latest installment of which treats the exclusionary rule, connects in some counterintuitive ways with the relatively recent brouhaha about the Supreme Court’s deployment of foreign sources of law. The debate about relying on foreign sources of law has generally seemed to pit those on the left in favor of things like limiting the death penalty against more conservative members of the Court and Congress who are unwilling to rely on international consensus as an indication of what America should do. The topics that Liptak has chosen to discuss, however, indicate that simply polling the world community would not uniformly lead the Court to more liberal results, at least according to our conception of what “liberal” means in the United States.
The Fourth Amendment’s exclusionary rule, prohibiting the admission of evidence obtained through illegal searches and seizures, is a perfect example. As Justice Clark explained in Mapp v. Ohio (1961), which applied the exclusionary rule to the states, the rule functions not simply as a principle of evidence but instead as a “constitutionally required—even if judicially implied—deterrent safeguard.” By punishing the prosecution for obtaining evidence in an illegitimate manner, the rule thereby dissuades police officers from engaging in such conduct in the first place. The exclusionary rule thus furnishes a kind of restraint on governmental intrusion into privacy that would generally be lauded by liberals or libertarians. As Liptak points out, however, other courts—most notably, a Canadian appeals court, the High Court of Australia, and the European Court of Human Rights—have refrained from adopting such an exclusionary rule.
Some of the examples of contravening legal regimes that Liptak cites demonstrate the perils of relying on foreign sources without placing them within the appropriate comparative framework. Although Australia, like the United States, boasts a common law heritage, it notoriously lacks a bill or charter of rights—hence, the considerations that the U.S. Supreme Court is obliged by the Fourth Amendment to take seriously are not similarly available to Australian judges. The European Court of Human Rights, while influenced by U.S. rights jurisprudence, hears appeals from both common and civil law countries, which necessarily boast very different kinds of procedural safeguards for defendants. As Amalia Kessler’s article “Our Inquisitorial Tradition” illuminates, due process may valuably assume disparate shapes within the common and civil law traditions. Hence, the ECHR may justifiably be unwilling to insist upon principles like the exclusionary rule that might fit better within a common than a civil law system. These concerns, as well as others derived from comparative law, should encourage us, in general, to evaluate the relation between any particular instance of American exceptionalism and its justification within the legal system of which it forms a part. In doing so, we may find that selective exceptionalism is not as anathema as it might sound.
The Fourth Amendment’s exclusionary rule, prohibiting the admission of evidence obtained through illegal searches and seizures, is a perfect example. As Justice Clark explained in Mapp v. Ohio (1961), which applied the exclusionary rule to the states, the rule functions not simply as a principle of evidence but instead as a “constitutionally required—even if judicially implied—deterrent safeguard.” By punishing the prosecution for obtaining evidence in an illegitimate manner, the rule thereby dissuades police officers from engaging in such conduct in the first place. The exclusionary rule thus furnishes a kind of restraint on governmental intrusion into privacy that would generally be lauded by liberals or libertarians. As Liptak points out, however, other courts—most notably, a Canadian appeals court, the High Court of Australia, and the European Court of Human Rights—have refrained from adopting such an exclusionary rule.
Some of the examples of contravening legal regimes that Liptak cites demonstrate the perils of relying on foreign sources without placing them within the appropriate comparative framework. Although Australia, like the United States, boasts a common law heritage, it notoriously lacks a bill or charter of rights—hence, the considerations that the U.S. Supreme Court is obliged by the Fourth Amendment to take seriously are not similarly available to Australian judges. The European Court of Human Rights, while influenced by U.S. rights jurisprudence, hears appeals from both common and civil law countries, which necessarily boast very different kinds of procedural safeguards for defendants. As Amalia Kessler’s article “Our Inquisitorial Tradition” illuminates, due process may valuably assume disparate shapes within the common and civil law traditions. Hence, the ECHR may justifiably be unwilling to insist upon principles like the exclusionary rule that might fit better within a common than a civil law system. These concerns, as well as others derived from comparative law, should encourage us, in general, to evaluate the relation between any particular instance of American exceptionalism and its justification within the legal system of which it forms a part. In doing so, we may find that selective exceptionalism is not as anathema as it might sound.
Tuesday, July 8, 2008
Davis Through a Religious Liberty Lens
Last month, the Supreme Court struck down the so-called “millionaire’s amendment” to the Bipartisan Campaign Reform Act, a provision that had loosened campaign finance restrictions on opponents of self-financing candidates. Since the Davis v. FEC decision, debates have been proliferating over just how much the case will affect the election law landscape. I haven't yet seen anything though that looks at Davis through the lens of the religion clauses, in the way that Pam Karlan's fascinating new piece, "Taking Politics Religiously," 83 Indiana L.J. 1-20 (2008), suggests could importantly illuminate our understanding of the law of democracy.
As a thought experiment, imagine the regulatory scheme at issue in Davis transposed into an Establishment Clause case involving vouchers. State X considers a law creating a voucher program through which each student can spend $2,300 at the school of her choice. Any school participating in the program has to agree to derive all of its current revenue from the vouchers rather than from other sources. In legislative hearings, a number of individuals express concern that, because Church Y is the only one that has already set up educational institutions and is well financed in the region, students would only be able to opt out of the public school system by attending Church Y's schools and the result would be a de facto, if not de jure, establishment of religion. Would it then be permissible, under the Establishment Clause, for the state to allow new competitor schools to receive private funding above and beyond their voucher receipts until they, like the pre-existing religious schools, had enough money to ensure their continued existence?
Reasoning from Davis, the answer would be “no.” Now, envision Davis translated into the language of the Free Exercise Clause. This effort, I believe, points up the disparity between the Davis majority’s construction of the individual right at issue in that case and its usual approach to rights in other contexts. Imagine that, after the U.S. Supreme Court’s decision in Employment Division v. Smith, the Supreme Court of Oregon, based upon state constitutional protections for religious liberty, decided to judicially grant Native Americans an exemption for peyote use from generally applicable drug laws. In the aftermath of this decision, other religious institutions in the vicinity that had ceased drug-related activities central to their religious beliefs because of their illegality lobbied the state legislature for an exemption from state laws regulating such substances. If the state did indeed create such statutory exemptions, could we envision the Native American Church succeeding in a free exercise-based claim that permitting these other groups to engage in religion-related drug use diluted the symbolic meaning of their own religious practices and thereby generated a constitutionally impermissible burden?
It is difficult, in the free exercise area, to contemplate the Court treating an exemption granted to one individual’s or group’s religious practice as in and of itself imposing a burden on others’ free exercise rights. It is, however, precisely this kind of competitive and zero-sum conception of an individual right that Justice Alito adopted in Davis when he explained that the “millionaire’s amendment” imposed a “potentially significant” and “unconstitutional” burden on the self-financing candidate’s “First Amendment right to use personal funds for campaign speech” (Slip. Op. 12, 14). Given this discrepancy, it will be interesting to see how far beyond the campaign finance arena the Court will be willing to extend Davis’s understanding of a right.
As a thought experiment, imagine the regulatory scheme at issue in Davis transposed into an Establishment Clause case involving vouchers. State X considers a law creating a voucher program through which each student can spend $2,300 at the school of her choice. Any school participating in the program has to agree to derive all of its current revenue from the vouchers rather than from other sources. In legislative hearings, a number of individuals express concern that, because Church Y is the only one that has already set up educational institutions and is well financed in the region, students would only be able to opt out of the public school system by attending Church Y's schools and the result would be a de facto, if not de jure, establishment of religion. Would it then be permissible, under the Establishment Clause, for the state to allow new competitor schools to receive private funding above and beyond their voucher receipts until they, like the pre-existing religious schools, had enough money to ensure their continued existence?
Reasoning from Davis, the answer would be “no.” Now, envision Davis translated into the language of the Free Exercise Clause. This effort, I believe, points up the disparity between the Davis majority’s construction of the individual right at issue in that case and its usual approach to rights in other contexts. Imagine that, after the U.S. Supreme Court’s decision in Employment Division v. Smith, the Supreme Court of Oregon, based upon state constitutional protections for religious liberty, decided to judicially grant Native Americans an exemption for peyote use from generally applicable drug laws. In the aftermath of this decision, other religious institutions in the vicinity that had ceased drug-related activities central to their religious beliefs because of their illegality lobbied the state legislature for an exemption from state laws regulating such substances. If the state did indeed create such statutory exemptions, could we envision the Native American Church succeeding in a free exercise-based claim that permitting these other groups to engage in religion-related drug use diluted the symbolic meaning of their own religious practices and thereby generated a constitutionally impermissible burden?
It is difficult, in the free exercise area, to contemplate the Court treating an exemption granted to one individual’s or group’s religious practice as in and of itself imposing a burden on others’ free exercise rights. It is, however, precisely this kind of competitive and zero-sum conception of an individual right that Justice Alito adopted in Davis when he explained that the “millionaire’s amendment” imposed a “potentially significant” and “unconstitutional” burden on the self-financing candidate’s “First Amendment right to use personal funds for campaign speech” (Slip. Op. 12, 14). Given this discrepancy, it will be interesting to see how far beyond the campaign finance arena the Court will be willing to extend Davis’s understanding of a right.
Tuesday, July 1, 2008
Preserving the Right of Resistance
For a couple of weeks, I will be guest-blogging over at Prawfsblawg and will be cross-posting there.
In light of Justice Scalia's insistence on the exceptional requirements of war in Boumediene, and his excoriation of the majority's opinion for "mak[ing] the war harder on us," I was somewhat surprised to discover very vivid traces of England's seventeenth-century civil wars being treated with distinct approval in Justice Scalia's opinion in Heller. Indeed, as the opinion makes evident, the kind of "self-defense" that the right to bear arms should preserve is not simply the kind that would result in less crime, but rather the kind that would permit citizens to menace government with the threat of its dissolution.
Throughout the case, Justice Scalia refers back to the context of seventeenth-century conflicts between religious dissenters and the Crown, situating his discussion of the English Bill of Rights--which he views as containing the predecessor to the Second Amendment--within this context. His most extended treatment of the history makes evident the extent to which the right was one designed to ensure the capacity to resist political authority:
"Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. . . . These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed. . . . This right has long been understood to be the predecessor to our Second Amendment. . . . It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants . . . [b]ut it was secured to them as individuals, according to 'libertarian political principles,' not as members of a fighting force.
By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone . . . cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, 'the natural right of resistance and self-preservation,' and 'the right of having and using arms for self-preservation and defence' . . . . Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence." (Slip Op. 19-21)
Even if construed as rights to be exercised by individuals, the rights of resistance and self-preservation mentioned here were not, in seventeenth- and early eighteenth-century England, envisioned as simply ensuring the ability of one lone Protestant to attend religious services or protect his land. Instead, these rights were viewed as those which, at least under certain circumstances, could be exercised by a number of insurgents in the service of revolution. Perhaps then we should next ask the Court when, under Heller, we are authorized to bear arms not solely to protect ourselves against burglars in the night but rather against our own government. When would that not just render us enemy combatants?
In light of Justice Scalia's insistence on the exceptional requirements of war in Boumediene, and his excoriation of the majority's opinion for "mak[ing] the war harder on us," I was somewhat surprised to discover very vivid traces of England's seventeenth-century civil wars being treated with distinct approval in Justice Scalia's opinion in Heller. Indeed, as the opinion makes evident, the kind of "self-defense" that the right to bear arms should preserve is not simply the kind that would result in less crime, but rather the kind that would permit citizens to menace government with the threat of its dissolution.
Throughout the case, Justice Scalia refers back to the context of seventeenth-century conflicts between religious dissenters and the Crown, situating his discussion of the English Bill of Rights--which he views as containing the predecessor to the Second Amendment--within this context. His most extended treatment of the history makes evident the extent to which the right was one designed to ensure the capacity to resist political authority:
"Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. . . . These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed. . . . This right has long been understood to be the predecessor to our Second Amendment. . . . It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants . . . [b]ut it was secured to them as individuals, according to 'libertarian political principles,' not as members of a fighting force.
By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone . . . cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, 'the natural right of resistance and self-preservation,' and 'the right of having and using arms for self-preservation and defence' . . . . Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence." (Slip Op. 19-21)
Even if construed as rights to be exercised by individuals, the rights of resistance and self-preservation mentioned here were not, in seventeenth- and early eighteenth-century England, envisioned as simply ensuring the ability of one lone Protestant to attend religious services or protect his land. Instead, these rights were viewed as those which, at least under certain circumstances, could be exercised by a number of insurgents in the service of revolution. Perhaps then we should next ask the Court when, under Heller, we are authorized to bear arms not solely to protect ourselves against burglars in the night but rather against our own government. When would that not just render us enemy combatants?
Subscribe to:
Posts (Atom)
