Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, February 23, 2016

The Optimist

Some reflections of mine on Justice Scalia at Commonweal, to add to the good comments and memories of Lisa, Rick, Tom, Erika, and Kevin. A bit from the end:

His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.

In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.

Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.

Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”

So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.

In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.

February 23, 2016 in DeGirolami, Marc | Permalink

Sunday, February 21, 2016

Fr. Scalia's Homily: "We are gathered here because of one man."

As a follow-up to Rick's post, here is a transcript of Fr. Scalia's moving, mildly humorous, and theologically profound homily. As a teaser, here's the part right after the opening acknowledgments and expressions of gratitude:

We are gathered here because of one man. A man known personally to many of us, known only by reputation to even more. A man loved by many, scorned by others. A man known for great controversy, and for great compassion. That man, of course,

Continue reading

February 21, 2016 in Walsh, Kevin | Permalink

Justice Scalia's funeral Mass

You can watch a recording of Justice Scalia's funeral Mass on YouTube, here.  It's beautiful . . . especially the wonderful homily preached by the Justice's son, Fr. Paul Scalia.  R.I.P.

February 21, 2016 in Garnett, Rick | Permalink

Saturday, February 20, 2016

Remembering Justice Scalia

I am not a Con Law scholar, and have not spent as much time as my colleagues analyzing Justice Scalia's writing.  I knew him only as the spouse of one of his clerks.  In that vein, here are the memories I shared with our student newspaper, and a picture of my husband and me paying our respects at the Supreme Court yesterday.

I first met Justice Scalia in 1986. My husband, Patrick, was clerking for then-Judge Scalia on the DC Circuit Court of Appeals. The week that we had our first date was the week that Justice Scalia was nominated to the Supreme Court. I first met Justice Scalia that summer when Patrick and I drove down to his summer cottage on the Virginia shore, to deliver some papers related to his nomination hearings. He was wearing shorts, relaxing with his (many) kids and his wife; we played some board games before heading back into Washington. My husband, who had already been hired by Justice O’Connor for the next year, was released from that obligation to go with Justice Scalia for his first year on the Supreme Court. Of course I encountered Justice Scalia in many more formal settings over the years, and came to admire the brilliance of his opinions. But most of my personal memories of him were ones like that first meeting at the beach, and later meetings at which we would swap stories with him and his wife, Maureen, about what our children were all up to.

It goes without saying that Justice Scalia was a brilliant man with a sharp wit. But he was also a man who reveled in his family, and was generous and loyal to his friends. Over the years, he was unfailingly gracious in responding to my husband’s invitations to speak at Notre Dame Law School, where we taught before coming to help re-open the Law School at the University of St. Thomas, and then to speak at UST Law – from the very beginning of our existence to more recently, including this past Fall. One of Justice Scalia’s most striking characteristics was his openness and curiosity about the parade of people who came across his path. The fact that his friendships crossed all typical lines of politics, faith, age, and background is a testament to his generosity of spirit. He was a wonderful man.

My husband and I are currently in Washington to attend his funeral. The funeral card distributed at his wake on Friday included the prayer of St. Ignatius, a fitting reflection as we say goodbye to this great man:

Take, O Lord and receive all my liberty, my memory, my understanding and whole will.
You have given to me all that I am and all that I possess.
I surrender it all to You, that You may dispose of it according to Your will.
Give me only Your love and Your grace.
With these I possess all and seek naught else.




February 20, 2016 in Schiltz, Elizabeth | Permalink

Friday, February 19, 2016

Conscience Rights and the Hypocrisy of (Some) Lawyers


The last several years have witnessed, a number of highly publicized cases that have pitted proponents of same-sex marriage against certain business owners who claimed a religious exemption to public accommodation laws. Florists, bakers, and photographers who declined to make their expressive talents available to celebrate and thereby promote a view of marriage at odds with their religious conscience, have been socially branded as haters and bigots, and legally penalized for their dissent.

The view championed by the advocates of public accommodation against those who dissent from the new understanding of marriage is that everyone in business must serve “all comers.” According to the ACLU (here) “Everyone is entitled to their own religious beliefs, but when you operate a business in the public sphere those beliefs do not give you a right to discriminate.” As the New Mexico Supreme Court concluded in Elane Photography, LLC v. Willock, 309 P.3d 53, 67 (N.M. 2013), “[i]f a commercial business wishes to offer its services to the public, thereby increasing its visibility to potential clients, it will be subject to the antidiscrimination provisions of the [state public accommodation law].”

But there is a conspicuous exception to this policy: the provision of legal services. Members of the legal profession enjoy a kind of conscience protection that exempts them from being forced to represent clients who seek to advance causes with which they disagree. As such, this conspicuous exception to the “all comers” policy involves the very advocates who argued against the bakers, florists, and photographers who sought to refrain from having their expressive talents utilized in support of same sex marriage.

This exceptionalism smacks of hypocrisy – a double standard whereby (some) lawyers are free to overcome the conscience objections of certain businesses even as they enjoy the conscience protection afforded by the law governing lawyers.

There is something similar to the notion of “public accommodation” in the legal profession. It is the idea that every client has a right to counsel. The right is not absolute (e.g. disqualification of counsel due to conflicts of interest), and there is no right to have counsel provided free of charge to those who cannot afford a lawyer (except in a criminal case). To encourage pro bono representation, the legal profession celebrates the lawyer who represents a client who cannot afford to pay, especially where the client’s cause is unpopular.

What the profession does not require of its members, however, is that specific lawyers agree to represent specific clients. Doing so may be regarded as laudatory. But, as Harvard’s David Wilkins explains in his article Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan? 63 Geo. Wash. L. Rev. 1030 (1995) (link here), “a lawyer is free to turn down any case for any reason, including the most banal (and undoubtedly most common) reason of all: the client can’t afford to pay the freight” (p. 1036).

As Wilkins also explains, there are two rationales behind the bar’s historic reluctance to require lawyers to represent specific clients in specific matters. The first rationale, found in MRPC 6.2, focuses on the attorney-client relationship and the quality of the legal representation provided. It states that a lawyer may refuse court appointed representation “where the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”

The second rationale “focuses on the lawyer’s moral right to control his or her own labor” (p. 1038). The thinking behind this rationale is that “[g]iven our society’s commitment to both individual autonomy and moral pluralism, it would be fundamentally wrong for the state (or the profession) to compel individuals to commit what they consider immoral acts for the sake of the greater good” (p. 1039). Indeed, “[a] lawyer who believes that it would be morally wrong to lend her professional skill to a particular cause ought not to be forced to do so just because the client can see some strategic advantage in the arrangement” (Id.).

Reflecting this rationale, MRPC 1.16 (b)(4) provides that a lawyer may withdrawal from a representation already begun where "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."

These conscience protections for lawyers are provided notwithstanding the ABA's assurance that "[a] lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities" MRPC 1.2(b).  One might have thought that this official declaration of lack of endorsement would be enough to protect the conscience rights lawyers, but the ABA plainly believes otherwise.

In addition to the professional standards promulgated by the ABA, the Supreme Court has recognized the expressive nature of legal representation. In In re Primus, 436 U.S. 412 (1978) the Court refused to apply a state legal ethics ban on attorney in-person solicitation recognizing that the lawyer’s actions were taken “to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain” (Id. at 422). In the same way, photographing, or providing floral arrangements, or baking a cake for a wedding celebration could, quite reasonably, be taken as expressing a certain moral or religious view with respect to marriage.

Some might argue that Primus is unhelpful in reaching this conclusion insofar as the majority opinion draws a strong distinction between a lawyer who takes a case in order to advance a particular moral or political position, and a lawyer who takes a case in order to earn a fee. Taking up this distinction, those who urge the application of public accommodation laws to florists, bakers, photographers and other vendors who refuse to participate in the celebration of a same-sex weddings are business owners seeking to make money. They are for-profit enterprises, not religious entities that exist to exude the faith of their owners.

This claim regarding In re Primus is deserving of several responses.

First, in his dissent in Primus, Justice Rehnquist expressed extreme doubt as to the ability of the state to draw a principled distinction between, on the one hand, a lawyer who proposes a commercial transaction and, on the other hand, a lawyer who engages in political expression through legal representation (Id. at 440-42). He was highly skeptical as to whether state authorities would be able to tell whether “a lawyer proceeds from political conviction rather than for pecuniary gain” (Id. at 445).

This skepticism is altogether understandable. Most people are motivated to engage in the kind of work they do for multiple reasons: because they enjoy the work itself and find it fulfilling; because it enables them to earn a good living; because they find it to be consonant with their moral, political, and religious views.

Indeed, work that enables a person to make a living may advance his or her religious beliefs in the world in a way that is far more powerful than simple proselytism. In the Catholic understanding of things, this is what it means to have a vocation – to make the love of Christ present in the world and thereby “work out your salvation in fear and trembling” (Phil. 2:12).

The multi-dimensional nature of work is significant. We are not required to subscribe to a Manichean worldview – championed by secularists – demanding that the reality of social life be compartmentalized into its preferred categories: the sacred and the profane, religious expression and business enterprise, vocation and occupation.

The hypocrisy of lawyers (at least some lawyers) when it comes to conscience protection, then, is this. Lawyers for the LGBT community are all too happy to say that "open for business" means that a vendor or service provider must serve “all comers” no matter how much he or she disagrees with the would-be customer politically, morally, or religiously, even where the business owner’s work necessarily involves his or her expressive talents in support of the view opposed.  Yet how many of those same lawyers would be willing to represent the opposite point of view? Would they not instead claim that demanding such legal representation would amount to a totalitarian misappropriation of their talents? An immoral demand that they use their creative, legal abilities in the service of a cause that goes against their conscience?

Nestled safely behind the walls of the legal profession, secure in their own rights of conscience, they plot the downfall of others.

February 19, 2016 | Permalink

Wednesday, February 17, 2016

"Antonin Scalia: Devout Christian, Worldly Judge"

Some reflections  of mine on Justice Scalia--his faith and judicial philosophy--at Christianity Today. Admiring, with some criticism. The final paragraph:

In end, however, Justice Scalia was a prophet, like many of the great dissenters in the Court’s history (he will rank with Oliver Wendell Holmes among the greatest). And prophecy involves ringing tones and stark terms; it is hard to combine those with qualifiers that charitably give the other side every benefit of the doubt. Justice Scalia lost many battles on the Court, and some of his positions will become even less popular over time. But many of his words will ring with prophetic power for generations to come.

February 17, 2016 in Berg, Thomas, Current Affairs | Permalink

Good and welcome news from Oklahoma on school choice and the "Blaine Amendment"

As I mentioned the other day, Justice Scalia's sudden death could mean bad news in the case out of Missouri, having to do with that state's discriminatory prohibition on aid to religious institutions.  However, thanks to Prof. Friedman, we have some good news in a related case out of Oklahoma:

In Oliver v. Hofmeister, (OK Sup. Ct., Feb. 16, 2016), the Oklahoma Supreme Court upheld the constitutionality of the state's voucher program that permits children with disabilities to attend any private school of their choice to obtain special education services, whether the school is sectarian or non-sectarian.  The Court held that the program does not violate the "no aid" clause of Oklahoma's Constitution, Art. II, Sec. 5 (Oklahoma's Blaine Amendment), saying in part:

Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to asectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.

Tulsa World, reporting on the decision, says that in 2014-15, 61% of the the $2.5 million total vouchers went to religious schools.

February 17, 2016 in Garnett, Rick | Permalink

Disagreeing with Michael Sean Winters on "Justice Scalia's Legacy"

A few days ago, at Distinctly Catholic, Michael Sean Winters posted this, "Justice Antonin Scalia's Legacy."  In my view, the piece is mistaken in several ways, starting with the claim that it was Justice Scalia who "helped accelerate the transformation of the court into a political football."  In fact, it was a constant and consistent refrain of his, in opinions and in speeches, that one of the many reasons to regret the Court's overreaches and mistakes in politically and philosophically charged areas is that these overreaches and mistakes naturally made the Court and its composition into political footballs.  As he (correctly) pointed out, if the Court insists on assuming for itself the power to decide and purportedly settle political disputes over matters that people really care about, it should not be surprised when people come to care a lot about who is sitting on the Court.

Winters pronounces that the Justice was "an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other[,]" referring to "originalism" and "textualism."  To be sure, "originalism" (which, contrary to Winters's suggestion, is, in the literature, many things and not one) is controversial and contestible, but it's pretty clearly "tenable" (I've seen it done!)  "Textualism" in statutory interpretation anyway is entirely mainstream and unremarkable (thanks in no small part to Justice Scalia).  But, Winters does not accurately describe either interpretive method and so the post has a straw-man flavor about it.  For example, he confuses Justice Scalia's view with one that asks about the Founders' "original intent."  Winters also argues that the two "ideologies" "conflict with each other" but this claim rests entirely on his misdescription of "textualism" as the view that "words must be interpreted in a kind of fundamentalist matter."  Nor is "textualism" the view that "the Constitution is a self-interpreting text."  Nor is there any conflict between Justice Scalia's view that in statutory-interpretation cases the "legislative history" of the statute is not a helpful guide to the statutory text's meaning and his "originalism" -- which, again, does not involve a "search for explanations as to what was intended by the drafters of a given text."

I share, as a general matter, what I take to be Winters's view that the Court should defer to the politically accountable branches . . . except when the Constitution clearly requires otherwise.  (Interestingly, this "deference" is what Justice Scalia called for in his Smith opinion, which Winters regards as deeply wrong.)  And I think there is plenty of room for reasonable disagreement about when, in fact, the "Constitution clearly requires otherwise."  Justice Scalia thought, in Citizens United, that the Constitution did require otherwise (he was right), and Winters disagrees, which is fine.  (I probably agree with Winters regarding the Affordable Care Act cases.)  But there's nothing un-conservative (or opportunist or hypocritical) about concluding, from time-to-time, that a particular policy favored by a political majority has been taken off the table by the Constitution or that a particular precedent was wrong and should be abandoned.  And, in any event, if one steps back and surveys the Court since, say, the mid-1960s, and asks which justices have been most inclined to invalidate legislative or other policy choices on the basis of adventurous interpretations of the Constitution, I think Justice Scalia appears at least as deferential as the more liberal justices employing "living constitutionalism."

There are lots of interesting arguments to be had about how, exactly, judges should go about identifying the meaning of the Constitution's text, constructing doctrines and standards, and deciding cases.  In my view, Justice Scalia's brand of "faint-hearted originalism" has a lot to recommend it over its various rivals and textualism seems clearly the appropriate approach to the business of statutory interpretation.  Of course, I could be wrong.  In any event, I think it's very important -- when dealing with these debates, and with the three-decades-long "legacy" of one of the most consequential jurists in the post-war period, to engage claims and ideas carefully and accurately (even within the admitted limits of the blog-post format).

Winters followed his "Legacy" post with this one, on the "Consequences of Justice Scalia's Death."  (I think his predictions regarding particular pending cases are right, though there is no basis at all for the suggestion that Justice Scalia's Smith decision (his "handiwork") suggests any reservations about RFRA or about the wisdom of and need for legislative accommodations of religion.)  Near the end of the post, he returns to the matters I was discussing above:

As I noted yesterday, for all the volumes that have been written about Originalism and Textualism, they are not ideas that are as rigorous as they pretend to be, and even those of us who are not legal scholars, and who may treat them superficially when compared to the treatment they receive from those scholars, nonetheless we sniff what is wrong about them, and the abuses to which Scalia put them. There was a lot about the Founding he seemed not to grasp, not least its intensely anti-Catholic temper. And there is no text for which there is a mere “objective” reading. His ideology made judicial interpretation seem easy, and to the unwashed masses, if not to the scholars of the law, that ease fed their own desire for simplistic political solutions.

Again, there might well be some things "wrong about" (or at least incomplete about) originalism as a method of constitutional interpretation (my own view is that it wins-out in a second-best kind of way) and I'm sure that it (like any method) can be abused (or just inaptly deployed).  But, again, I don't think Winters's presentation of what these ideas actually are is accurate and so it is difficult to know how one who endorses his description could really "sniff what is wrong about them."  I don't think either of Winters's post actually identifies or presents an argument against "originalism," as Justice Scalia and most contemporary legal scholars understand it, other than to list some decisions (like Heller and Citizens United) that he thinks were wrongly decided and that Justice Scalia wrote or joined.  (Readers who are interested in learning more might enjoy this volume, "Constitutional Originalism:  A Debate.")


February 17, 2016 in Garnett, Rick | Permalink

Tuesday, February 16, 2016

Pope Francis: A Comprehensive Conceptualization of Justice

When Pope Francis visited the United States this fall, much was made of his social justice message regarding those in prison. His visit with inmates as well as his call for an end to the death penalty and life sentences captured the attention of many advocates of criminal justice reform. While the Pope did mention victims of human trafficking and poverty, it would be fair to note that many of his references relevant to crime victims were in the context of a secondary effect of greed or poverty.

Not so with his trip to Mexico. Even before leaving Rome, he issued a video statement to the Mexican people where he not only recognized victims of crime but called all people to fight organized crime, violence, and human trafficking. He responded to questions about the violence that plagues many Mexican people by recognizing the victimization this climate besets on some of its people:

"Violence, corruption, war, children who cannot go to school because their country is at war, trafficking, arms manufacturers who sell weapons so that the wars of the world can continue … this is more or less the climate that we live in the world, and you are experiencing a part of it, a part of this 'war', this part of suffering, of violence, of organized trafficking. If I come to you, it is to receive the best of you and to pray with you, so that the problems … that you know exist may be resolved, because the Mexico of violence, the Mexico of corruption, the Mexico of drug trafficking, the Mexico of the cartels, is not the Mexico that our Mother loves, and of course I do not wish to cover up any of that; on the contrary, I would urge you to fight, day by day, against corruption, against trafficking, against war, against disunity, against organized crime, against human trafficking".

Once on Mexican soil, he addressed Mexican politicians with more force than he did American legislators during his historic speech to Congress. Speaking to the Mexican political elite, he condemned corruption and noted that, "sooner or later the life of society becomes a fertile soil for corruption, drug trade, exclusion of different cultures, violence and also human trafficking, kidnapping and death, bringing suffering and slowing down development…." But some have argued that his strongest words were reserved for the ecclesial leadership and bishops. The Associated Press reports that he demanded these societal leaders "provide their people with security, justice and courageous pastoral care to confront the drug-inspired violence and corruption that are wracking the country, delivering a tough-love message to Mexico's ruling classes…."

When we examine these two trips together, a form of symmetry emerges. Pope Francis understands that criminal justice reform and prisoner rights do not exist in the vacuum. They exist as part of a continuum. While it is necessary to remember and act on the rights of those imprisoned, it is not sufficient. Rather, we must act to end the criminal victimization and violence by also holding responsible those who are engaged in and profit from this exploitation. His rebuke of corruption is an important rebuke of enabling or ignoring criminal activity which exploits and victimizes the innocent.

The road to criminal justice reform does not begin at the jailhouse or prison or even the police department. It begins with the protecting people from crime.

February 16, 2016 | Permalink

A Matter of Interpretation

As the nation grieves the passing of a great jurist, I suspect many of us at MOJ have been thinking about the precise contours of Justice Scalia's towering contribution to statutory and constitutional interpretation. I've found myself reviewing the philosophical and technical differences in Scalia and Thomas' views, and I have been happy to see pieces like this that throw out political categories to celebrate Scalia's achievement for the rule of law.

Mary Ann Glendon's comment on Scalia's 1995 Tanner lectures at Princeton, published together (with comments from Gordon Wood, Laurence Tribe and Ronald Dworkin) in A Matter of Interpretation in 1997, is well worth reading, as a comparatist complement to Scalia's foundational lectures. Glendon republished her comment in the magnificent collection of some of her writings, Traditions in Turmoil. (I couldn't find Glendon's comment online but here is Scalia's lecture.)

The issue at hand in Scalia's celebrated lecture (over two days) was looking at how American lawyers trained almost exclusively in the great common law tradition (at the very least, in the first year of law school) would have the necessary habits of mind to properly interpret statutes (and, well, the Constitution). Scalia reminds us that common law judges performed two functions: applying the law to the facts and making the law [or, depending on your cast of mind, discovering the law according to the dictates of reason]. This, of course, requires resolving the particular dispute at bar by discerning the applicable legal/common law principle, distinguishing this case from prior cases (or not), and applying stare decisis. This is a very different practice from the work of the lawyer or judge in the civil law system (e.g., Germanic) "where it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect, much as academic commentary would be; but they are not binding." 

More Scalia:

As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge- the Holmes, the Cardozo - is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule - distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on.

And then, Scalia writes:  "All of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy." !! Scalia describes the tension between common law judging ("making law") and separation of powers in the new era of statutes. And then: 

But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge - the mindset that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”-is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law....This is particularly true in the federal courts, where, with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law I resolve as a federal judge is an interpretation of text - the text of a regulation, or of a statute, or of the Constitution.

He then offers his robust and deeply influential view of statutory (and constitutional) interpretation as a way to fill the "sad" void of having had "no intelligible theory of what [American judges] do most." ("Whereas legal scholarship has been at pains to rationalize the common law - to devise the best rules governing contracts, torts, and so forth-it has been seemingly agnostic as to whether there is even any such thing as good or bad rules of statutory interpretation. There are few law school courses on the subject, and certainly no required ones; the science of interpretation (if it is a science) is left to be picked up piecemeal, by reading cases (good and bad) in substantive fields that are largely statutory, such as securities law, natural resources law, and employment law.") 

Glendon's comparatist comment runs a bit deeper into the historical comparison between the training and habits of the American lawyer in common law and those trained in the civil law, describing both the greater ease with which continental lawyers and judges have taken on constitutional interpretation due to their civil law habits of mind and the way in which those legal traditions could advance our own view of statutory/constitutional interpretation. 

When civil lawyers come to American law schools for graduate work, they often express surprise at the degree to which the case method dominates our approach to courses based on enacted law. In particular they find it hard to understand why constitutional law cases and materials typically begin not with the study of the language and design of the Constitution but with a case (usually Marbury v. Madison). 

Her suggestion for studying the Constitution in law school, drawn from continental canons of interpretation, will now be quite familiar to anyone who has read Michael Stokes Paulsen's superb book, The Constitution: An Introduction.

Here's Glendon: 

One trait that most conspicuously differentiates the Bundesverfassungsgericht's [German Constitutional Court] decisions from those of the American Supreme Court...is the practice of attending consistently to the language and structure of the entire Constitution--to the document as a whole, and to the relationship of particular provisions to one another as well as to the overall design for government....

Up to thirty years ago [now fifty years ago, as this was written in 1997], the typical constitutional law course was heavy on federalism, separation of powers, but light on the Bill of Rights. The obvious remedy would have been to teach the whole Constitution from preamble to last amendment--as a design for self-government as well as a charter of rights, and as a texts whose parts cannot be understood in isolation from one another.

For both Scalia and Glendon, the stakes in properly studying and interpreting both statutes and the Constitution are high: as Glendon puts it, "one of the most basic American rights is the freedom to govern ourselves and our communities by bargaining, education, persuasion, and yes, majority vote." Coming to Scalia's defense on this particular point (as many criticized his views as "vulgar majoritarianism"), Glendon concludes her comment: 

[I]s tyranny of the majority really the greatest danger that faces a country when its courts foreclose ordinary politics in one area after another --and when more and more decisionmaking power over the details of everyday life is concentrated in large private and public bureaucracies?  Which is more likely: that unruly majorities will have their way, or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few take rise? Whom should we fear more: an aroused populace, or the vanguard who know better than the people what the people should want? 

Tyranny, as Tocqueville warned, need not announce itself with guns and trumpets. It may come softly--so softly that we will barely notice when we become one of those countries where there are no citizens, but only subjects. So softly that if a well-meaning foreigner should suggest, "Perhaps you could do something about your oppression," we might look up, puzzled, and ask, "What oppression?" 

February 16, 2016 in Bachiochi, Erika | Permalink