The Washington Post has taken up the question of Catholics on the Supreme Court. Mostly a set of quotations from various commentators, the story at least asks the right questions. “Why have recent Republican presidents turned again and again to Catholic jurists when making appointments to the Supreme Court? It may be partly an effort to woo Catholic voters, but mostly it’s because so many of the brightest stars in the conservative legal firmament are Catholics, several scholars said.”
Those scholars included Notre Dame’s Gerald Bradley, who told the Post: “I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the ‘natural law’ thing.”
(HT Legal Theory Blog)
Did you notice that Chief Justice Roberts was sworn in with the following oath:
I, XXX, do solemnly swear, that I will support and defend the Constitution of the United States, against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office of which I am about to enter, so help me God.
But the code specifies:
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.” (28 USC 453).
What gives? I'm sure it's noting really, but I just wondered.
Dan Kahan, of Georgetown’s Exploring International Law blog, posted a link to the AP coverage (with excerpts) of Justice Ginsburg’s recent remarks at a recent New York City Bar Association reception. The lecture, which was given by Mary Robinson, former president of Ireland, was in Justice Ginsburg’s honor. Justice Ginsburg remarked: “I will take enlightenment wherever I can get it…I don't want to stop at a national boundary.”
How can we interpret the justice’s remarks in light of the current debate on the matter of citing to foreign law. Truly, I don’t know how to interpret the justice’s mention of enlightenment. For one, I find it an interesting choice of words. If we assume the common usage of “enlightenment,” then the justice most probably meant learning, “education that results in understanding and the spread of knowledge.”
In her recent article, which I posted about here, Mary Ann Glendon suggested that this process of “learning” is selective, and I will add results-oriented: “The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective.”
Glendon then quotes Scalia’s take that those who cite to foreign law are merely “looking over the heads of the crowd and picking out their friends.” That is to say, in light of Justice Ginsburg’s comment, that those who cite to foreign law are not so much open to the diversity of law on any topic but choose, instead, to focus on those foreign laws that lend support to a pre-determined result. This is explained by Glendon later in her piece that those who cite to foreign law ignore the diversity and difference in foreign laws: “They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state.”
Given the diversity in and of foreign law, enlightenment to/of others’ ways is perhaps a pretext to add support not otherwise lent by our domestic law. That conclusion is, to be sure, quite cynical, but not improbable. As Glendon, whose expertise is in comparative law, suggests, there is a definite difference in the way other legal systems conceive the rules of evidence, regulate abortion, or how religion and government should interplay. Those justices who’ve taken to citing foreign law have not taken any care to account for the foreign law in opposition to their opinion/holding. A natural conclusion is that citing to foreign law, as it is practiced, is self-serving and results-oriented. This betrays the semantics of Justice Ginsberg’s comment, which referenced enlightenment, not a results-oriented endeavor.
The next topic I’m interested in exploring is how we can apply the idea of incommensurability to the relevance of foreign law to our legal system.
SCOTUS blog gossips:
John over at John in Carolina notes that Robert Novak is reporting that President Bush met secretly last week with Priscilla Owen, strongly indicating, in Novak's view, that the President will select Judge Owen to replace Justice O'Connor.
Link: Mirror of Justice.
The Chief Justice worried often that too many lawyers did a bad job of finding balance in their lives, and that they were unhappy because they did not remember that their families and loved ones were the most important things. Good advice for law students. [Emphasis added.]