Friday, 19 December 2003

Fig leaves and the legalistic model

I was going to write a long rant about lawyers’ obsessions with such whimsical notions as stare decisis and legalistic reasoning, in connection with the Padilla and Gitmo cases. Thankfully, Will Baude points out a book review by Richard Posner that—while dealing with the seemingly completely different issue of gay marriage—makes a basic point about the judicial construction of rights that seems to escape everyone else who’s ever attended law school:

It should be apparent by now what the problem with Gerstmann’s approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent…, and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.

This is what is called “legal reasoning,” and it is hard to take seriously. For one thing, there is nothing sacrosanct about precedent, especially in the Supreme Court. In Lawrence, the Court overruled a precedent that was not merely analogous to the case at hand, as Turner and Zablocki might be thought analogous to a case involving homosexual marriage, but identical to it. (The case was the notorious Bowers v. Hardwick, which had upheld the validity of criminalizing homosexual sodomy.) For another, it would be child’s play, as a matter of legal casuistry, to limit those two cases to conventional, monogamous, non-incestuous, heterosexual marriage.

Judges like to pretend that their decisions are dictated by “logic,” or by an authoritative text or precedent, because it downplays the element of judicial discretion, which worries people. The pretense wears particularly thin in constitutional cases about marriage and sex, because the Constitution does not say anything about these subjects, and the framers of the Constitution, and of the major amendments, in particular the Fourteenth Amendment, which is the principal source of constitutional rights against the states, were not thinking about marriage, sex, homosexuality, or related topics when they drafted these founding documents. (Neither were the ratifiers.) Decisions such as the four that I have mentioned, together with the Supreme Court’s other well-known sex-related decisions, such as Griswold v. Connecticut (holding that a state cannot forbid married couples to use contraceptives) and Roe v. Wade, are all “political” decisions—not in the narrow Democratic versus Republican sense, but in the sense of being motivated by values not dictated by the orthodox materials of judicial decision-making. Precedent and analogy operate as fig leaves in such cases.

Fundamentally, I don’t think it matters whether or not there’s a legal precedent for Padilla’s detention or the indefinite limbo of detainees at Gitmo. What matters is whether or not they are the right things for the government to be doing, and in my opinion, neither are consistent with American values. Belittle popular punching bag Stephen Reinhardt all you want for saying that—god knows I think he’s an idiot at least half the time—but don’t pretend that your cites are any better than his, because fundamentally they aren’t. It’s all politics, and those who dabble in constitutional law would be well-advised to keep that in mind when discussing the judiciary.

Meanwhile, PG of En Banc gets to the heart of the substance of my uneasiness with Eugene Volokh’s position on the Gitmo detainees. Eugene’s position may (or may not) be legally correct, but it strikes me as morally wrong. Elsewhere: Robert Prather agrees on Padilla and disagrees on Gitmo.

This is my entry in the OTB Beltway Traffic Jam for today.