Last week Harvard Law School hosted an Anglo-American Legal Exchange addressing the topic of judging. The American justices were represented by Justices Antonin Scalia and Stephen Breyer and the British Law Lords were represented by Lords Rodger and Scott, and Lady Justice Arden. You can watch the video here.
In terms of sheer entertainment value the Americans beat the Brits hands down. Breyer and Scalia were in full form, while the Law Lords responded in the bracingly old-fashioned way that someone named Lord Rodger of Earlsferry or Lord Scott of Foscote should respond.
The low point was Dean Kagan's self-congratulatory introduction of the panelists (2nd minute, Real Player) in which she noted that with the appointment of Chief Justice Roberts a majority of the justices are now Harvard Law School alums, so Harvard can “win every case.” Oh please. I suppose she inadvertently failed to mention that by her count white male Republicans win every case too.
There were numerous highlights. The first was Justices Scalia’s and Breyer’s discussion of the judicial role. Scalia suggested (25th minute) that Chief Justice Roberts’ baseball analogy is not entirely correct because of the Court’s system of certiorari. Lower courts often get it wrong and yet we don’t take certiorari. In this sense the focus is not on securing justice. On doing justice, Scalia said, “Drive out of your mind the notion that I care about your client… I am not about to do justice … to your client at the expense of doing injustice to hundreds of others… I am much less interesting in your client than about the rule of law which will be adopted thousands of times by the lower courts without the benefit of my review.” Justice Breyer’s response (29th minute), “That sounds a little callous…. But on the whole correct…. As I joke with my brother (who is a district court judge), the role of the district court is to rule wisely, quickly, and fairly, but that is not to say the job of the appellate judge is to decide slowly, foolishly, and unfairly, for that would usurp the role of the Supreme Court.”
Justice Scalia praised (44th minute) the British system of picking judges as a true meritocracy in which the bar picks the best judges to be Law Lords without regard to politics, whereas our system of appointing judges is an avowedly political system. Justice Breyer disagreed (46th minute) and said the vast majority of judges are qualified people and that the newspapers give a “warped idea of the extent to which politics enters into the process.”
Lady Justice Arden argued (51st minute) that judges should not have agendas. “We don’t go into cases with an agenda. We don’t have agendas and we shouldn’t have agendas.” Scalia’s response: “It is not agendas, but different philosophies of deciding” that explain the different approaches among members of the Court.
Lord Rodger’s discussion (55th minute) of the death penalty in various Caribbean countries was quite illuminating. These cases forced Law Lords sitting as the Privy Council to address similar concerns of constitutional interpretation in the British system. These countries do have written constitutions with a bill of rights and various death penalty challenges have raised similar issues of judicial interpretation. “It is very hard to say that it wasn’t partly a feeling about the death penalty which brought this issue to the fore…. It did lead to one lot saying the constitution should be interpreted as a living instrument … and other people [taking] a rather strict constructionist view.”
Justice Breyer quipped (105th minute) that writing opinions is like attending a faculty meeting. “People sit there and think ‘I hope it’s going to be short’…. Then people start to talk and then think, ‘If everybody else will just keep quiet and we can get out of here.’ But then there comes a tipping point, and at the tipping point enough people have spoken that others think ‘Well if everyone is going to speak they might as well hear something intelligent.’”
The final question was on the use of foreign law. There was a 3-2 split among the panelists on the practice. Lord Scott argued (119th minute) that judges would be neglecting a valuable tool if they didn’t look to such decisions. “It’s absurd not to do that.” To which Justice Scalia replied, “Spoken as a good common law judge and were I a common law judge I think I would do the same. If I were making up the law, I would go and see how other countries thought it was good to make it up…. Now I agree if you believe in a living Constitution, then of course consult foreign law… You may as well consult the Ouija Board.” Breyer’s response: “The notion that it is a new idea to look to other places to find out how people settle similar legal problems is perhaps an ahistorical notion.” Lord Rodger’s view: “The inevitable tendency is that you look with favor on the cases that decide the point in the way that you … want to decide it,… and you reject the vast tract of authority that goes the other way…. I get relatively little assistance from them.” Lady Arden noted that in the British system we are bound by EU and ECHR decisions. But beyond that, with human rights, we are greatly assisted by how other judges thought about fundamental problems. “It is helpful.”
Well that clears things up. If you don't do it you are absurd and ahistorical; if you do do it you may as well be picking your friends or channeling the dead. Let's just hope that if this latter interpretive device gains currency there will be a preference for channeling the Founding Fathers rather than Sir William Blackstone.