Category: Jurisprudence

14

Supreme Court Unanimity

I have a thought experiment that I want to try out.  Can anyone think of a Supreme Court opinion that failed because it was not unanimous?  In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?

I ask this because when you read accounts of certain high-profile cases (for example, BrownHeart of Atlanta Motel, or Nixon), the Justices were concerned about avoiding dissents.  They feared that a dissent would inflame public opinion or stiffen the resolve of elected officials to defy the Court.  In the process, the Court sometimes had to say or omit things to get everyone on board that were unclear or harmful.

What I want to know (or think about) is whether this fear is real or not.  Avoiding a 5-4 decision makes sense, since you never know who the next Justice will be.  When the margin is greater than that, though, I’m not so sure.  Moreover, if a decision is really unpopular, does the presence of a dissent make or break what happens afterwards.  And does even achieving unanimity reduce that hostility?  If Justice Stanley Reed had dissented in Brown, would that have mattered?

 

0

To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.

2

Doubting Opinions

Every once in a while I come across a separate opinion in a case that is labelled “doubting” or “dubitante.”  It’s uncommon at the Supreme Court level (the last one I see came in the 1970s), but there are circuit court judges who use this mode of expression (Judges Easterbrook, Sutton, and Calabresi, to name just three).

I’m not sure what is gained by saying “dubitante” instead of “concurring.”  I suppose the former is clearer because it is communicating something like “I agree with the majority’s rationale, but I might not the next time around,” whereas the latter is saying “I do not agree with this rationale.”  Is there some other reason for using the doubting formulation?

0

SCOTUS-Books-in-Brief – Goodbye to the Sloooow Past!

Top Five Books has just announced a forthcoming series of e-books on Supreme Court cases. The series is titled “SCOTUS: Books-in-Brief.”  It is designed to provide readers – lay and scholarly alike – with a reliable, informative, and engaging narrative account of a significant Supreme Court ruling shortly after it comes down. Provided in e-book format, each work will be economically priced and accessible on multiple e-platforms.

Each e-book will be available within a week of the decision and will consist of an historical account of the general subject, a full statement of its facts, profiles of the parties, analyses of the lower court judgments, examination of the briefs filed and the oral arguments in the WMS-cover2Supreme Court, a discussion of the larger issues raised by the case, an analysis of the final judgment, and a comprehensive timeline – and all completed and ready for e-publication shortly after a Court ruling is rendered.

The first book in the series (now virtually complete at 75,000 words save for commentary on the forthcoming ruling) is When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. (See excerpt here.)

Writers Wanted!

If you are a good writer, have expertise in a certain area pertaining to a case before the Supreme Court, and can complete a 30,000-40,000 word manuscript (depending on the complexity of the case and subject matter) in a relatively short period of time, then contact us – we’d love to hear from you.

For more information about those on the advisory board and the series generally, click here.

0

Neurocriminology: The Monsters are in the Molecules

Is the brain indeed the prime suspect when it comes to horrific crimes? Does our molecular structure or DNA determine our destiny, for the benevolent best or the malovent worst?

Such questions and others are explored in Dr. Adrian Raine’s book titled The Anatomy of Violence: The Biological Roots of Crime (Pantheon, 2013). This mind-opening book by a University of Pennsylvania professor of psychiatry and chairman of the department of criminology is the focus of an online symposium just posted on the Washington Independent Review of Books Gb4yObYARcACwebsite.

To help flesh out some of the instructive and provocative points raised in Dr. Raine’s illuminating book, NYU professor of Clinical Psychiatry Laurence R. Tancredi (who holds MD and JD degrees) and a University of Minnesota law professor Francis Shen (who specializes in neuroscience and the law) wrote commentaries. In the spirit of a free exchange of ideas, Dr. Raine authored a reply. I wrote the foreword to the symposium.

8

Defining Original Understanding

I want to talk about an issue that has come up in my adopted home state of Indiana.  The legislature is debating whether to put a state constitutional amendment banning same-sex marriage before the voters. In Indiana, a constitutional amendment must be passed by two successive legislatures and approved in a referendum.  The same-sex marriage ban was passed by the previous legislature, so if it passed by this one it will go before the voters this Fall.

To win votes from legislators who are concerned about the effect that this amendment might have on domestic partnerships, a bill has been introduced that purports to define the amendment to say that it does not ban domestic partnership benefits.  Let’s assume for the sake of argument that this law passes.  What impact, if any, should it have on a court that interprets the amendment (assuming that it is ratified)?

You cannot say, of course, that the statute is part of the amendment’s text.  Nor can you say that it represents the understanding of the amendment by the previous legislature.  Nevertheless, one could say that this law represents the views of this legislature and would form part of the public understanding that voters would have when they vote on the amendment.  What is the solution to this interpretive puzzle?

0

The Dialectics of the State: Recent Work in Hegel’s Political and Legal Philosophy

Lydia Moland, Hegel on Political Identity. Evanston, IL: Northwestern University Press, 2011.

Thom Brooks, Hegel’s Political Philosophy. Edinburg: Edinburg University Press, 2013.

Thom Brooks (ed.) Hegel’s Philosophy of Right, Oxford: Blackwell, 2012.

 

One of the hallmarks of the reception of Hegel in the last 30 years is that Hegel’s work  have inevitably been understood in the context of his great predecessor Kant. Of the books under review here it is particular the collection of essays on Hegel’s Philosophy of Right that takes this reception strategy to heart. The two books under review, rather than seeking to draw an explicit contrast between the two, rather seek to position Kant and Hegel as fighting for the same sort of embodied ideal of freedom. Freedom, of course, is said in many ways and so many of the issues that emerge in these new and interesting works concern the particular social institutions that express freedom. The thesis of this review, if reviews could have a thesis, is to show that the works in question, particularly the works by Moland and Brooks, make an important contribution to overcoming the specious divide between Kant and Hegel so that Kant and Hegel might be revealed as what they intended themselves to be doing: diagnosing the ills and promises of modernity in a way that will help us to become free.

For ease of use, and because this review covers quite a bit of ground, I have separated this review into five sections and readers might skip forward to these depending on their interest in the topics. According, section (1), System, deals with some of the larger questions raised by Hegel’s response not only to Kant but also to metaphysics itself as detailed by Brooks. Section (2), Morality discusses Hegel’s famous Kantkritik according to which Kant’s categorical imperative is an empty formalism. Section (3), Legal Philosophy concerns Brooks’s interpretation of Hegel’s legal philosophy as an ‘internalist natural law theory’, where this means essentially that Hegel is an anti-positivist who nonetheless believes that legal norms must emerge immanently from society rather than as revealed by god. Section (4) examines Hegel’s view of Government, as detailed in Brooks’. Section (5) on World History deals with Moland’s interesting proposal that Hegel’s with regard to the international political order should be characterized as an ethical cosmopolitanism in the sense that each nation state will necessarily move beyond itself toward recognition of others in as what she calls ethical cosmopolitanism rather than as a Kantian style world government.

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The Perils of Textualism

I am enjoying Garrett Epps’ new book on Reading the Constitution, and he makes an excellent observation that I am going to use to illustrate the limits of textualism.

A basic proposition of American constitutional law is that there are three branches of government.  The Constitution, though, does not say this.  In fact, the text uses the word “branch” to mean something else.  In Article One, Section Two, eligibility of voting for the House of Representatives is restricted to those who can vote for “the most numerous Branch of the State Legislature.”  Likewise, the Seventeenth Amendment refers to eligibility for voting in the Senate to “the most numerous branch of the State legislatures.”  These are the only uses of “branch.”

Just reading the text, then, the answer might be that we have two branches in the federal government.  The Senate and the House of Representatives.  Or that we have no branches, because only state governments have them.  Beware literal readings of a document.

6

The Privy Council

68px-Royal_Arms_of_the_United_Kingdom_(Privy_Council).svgIn spite of my love of all quirky legal things English, until recently I had not focused on the Privy Council.  This ancient body advised the Crown before the modern Cabinet system began, but for lawyers its most interesting role was as the highest court for (some) appeals from British courts and for the colonies of the Empire.  Couple of oddities worth pointing out:

1.  For a time the Privy Council was the highest court for Canada and other former colonies.  The notion of having a foreign body as a Supreme Court raises fascinating jurisprudential questions.

2.  The Privy Council is still the highest court (at least for some cases) from New Zealand.

3.  Privy Council opinions never have dissents (the opposite of the seriatim approach that long prevailed in other royal courts).

13

The Meaning of Settled Law

In my advanced con law class this semester, one question that we are going to discuss goes like this:  “Is Obamacare settled law?”  The practical answer to that question is no.  That fact, though, runs against a more orthodox or formalist view of the problem.

The Supreme Court upheld the Affordable Care Act in 2012.  Why did that not settle the question?  The answer is the Republican Party takes the position is that the statute should be repealed.  As long as that is true, then you cannot say that the law is settled.  (It may be settled constitutional law, but it is not settled law.)  You can say something similar about contested Supreme Court cases.  Roe v. Wade is not settled law because one of the two parties takes the view that it should be overturned.  It doesn’t matter that Roe is forty years old and has been endorsed by scores of judges and scholars.  Nowadays, law is only settled when both major political parties are on board.

The Republican presidential campaign in 2016 will go a long way towards determining the status of the Affordable Care Act.  One would expect that some of the candidates will call for the Act’s repeal, but some might say something along the lines of “It’s Time to Move On,” or “That’s a Fight We Cannot Win.”  If that latter view prevails, then (and only then) will the Act be settled.