Ive just gotten around to reading the transcript of the exchange last week between Justices Antonin Scalia and Stephen Breyer. As I promised, heres the "more later."
Hindrocket nails the decisive point in the post I cited earlier. Here, once again, is Justice Breyer, if you missed him the first time:
I usually think, and I think Justice Scalia does too, that in the United States, and this is perhaps unique to the United States, or almost, law is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And were part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think thats the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. And that means you have to have the conversation. And then I think we participate it, even at a general level, not just when were deciding cases.
Breyer thinks hes being modest by saying that the Supremes are not oracles, speaking as gods or for the gods. They are part of a larger "law-making" community--judges, professors, law students, and members of the bar--who discuss and argue. On one level (and Im being charitable here), this is a good thing: if your regard the conversation as rational (remember, Im being charitable), then law is a product of reason. A very charitable Thomist might say that this "human law" depends upon our apprehension of natural law, which is given to us through our reason. And since every rational human being has access to natural law, why not consult any smart, thoughtful person who has considered the issues that were confronting? This is the burden of Justice Breyers argument: opinions in foreign courts might bring additional voices into the conversation, enhancing its comprehensiveness and thereby its reasonableness. (Remember, Im being charitable here.)
If I were writing a treatise on natural law or making some recommendations for how (legislatively or personally) to approach moral questions, Id wouldnt quarrel at all with Justice Breyer. Mary Ann Glendon did just that thing a number of years ago in her wonderful book, Abortion and Divorce in Western Law.
But there are at least three things that trouble me about Breyers argument. The first is the supreme arrogance underlying his humility, nailed also by Hindrocket. Ill just quote the latters post:
Im not sure I would have believed that if I hadnt read it: "The law emerges from a conversation with judges, lawyers, professors and law students." No mention of the language of the Constitution; no mention of statutes enacted by Congress or the state legislatures; no mention of American customs, traditions, or popular opinion.
Gee, I always thought it was legislatures that "made law," or perhaps voters by popular initiative, or "the people" through the processes of constitution-making or constitution-amending. Nope, its the legal community, answerable ultimately to no one but themselves. (If I were charitable, Id say "answerable to no one but God," but Ive ceased being charitable.) Breyer may be speaking loosely here, calling constitutional interpretation law-making, but I really think that he is ultimately indifferent to the authority of the document itself. This is a classic example of "results-oriented jurisprudence," as Scalia points out when he argues that Breyer and his colleaues always cite only those foreign cases and opinions that support the result they want to reach.
My second misgiving is a variation on the first. It absolutely makes sense to consult any wise head when youre dealing with a moral or philosophical difficulty: philosophers, poets, statesmen, essayists, priests, ministers, rabbis, imams, my grandmother, my wifes late Uncle Alec, eloquently eulogized by his two sons today, even lawyers, law professors, and judges. (I draw the line at law students.) And I obviously wouldnt limit myself to people alive today, but would mine the wisdom of the ages. Given his approach, in other words, Breyer doesnt cast his net widely enough. In his defense (O.K., Im being a little charitable), Id say that hes not running a seminar or even re-writing Grotius, but engaging in "legal reasoning," so that it makes sense to narrow the conversation. Its also obvious that courts cant take forever to decide cases. But legal reasoning isnt the same as legislation or "lawmaking." Lawmakers should consult more sources (including, obviously, but not exclusively, their constituents), theyre not bound by the rhetorical, argumentative, or evidentiary conventions of a particular approach, and theyre not resolving a dispute between two parties. They often (but not always) have more time. Breyer should be more modest about what he does, and leave the lawmaking to the lawmakers.
Finally, there is, I think, another reason why Breyer professes to consult only the living. He is a "progressive." Our problems and issues can only be illuminated by those who confront similar problems and issues. And Scalia hits the nail on the head here, in describing the difference between his approach and Breyers:
Now if youre following an originalist approach, you ask, what did the framers believe constituted due process of law? And if you find something there and I dont like it, its too bad; I am chained. I -- because of my theory of the Constitution, thats what due process was and thats what it is today, unless you amend it. Whereas if you just say due process of law is an invitation for intelligent judges and lawyers and law students to imagine what they consider to be due process and consult foreign judges, then, indeed, you do not know what youre saying when you swear to uphold and defend the Constitution of the United States. It morphs. I mean, under our current Constitution, changes.
So what is the "new natural law"? It is the "law of nations," selectively cobbled together by judges from the opinions of their fellows all around the world, for the sake of producing results those judges find congenial. I think Id prefer "the atrocious Grotius" to this. He at least cast his net more widely and found merit in the wisdom of the ages.