The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law

As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at the hearings. Does Judge Sotomayor believe the Supreme Court should be able to cite international and foreign law in its decisions? Let’s be frank: considering some of the esoteric sources cited in many Supreme Court opinions, why would anyone spend more than a moment on what sources the Court will refer to? Yet, this issue has become a focus of significant debate.

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity. 

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Randomness, Rules, and Reason

Binary Code 1 (bw)Michael’s post below had an intriguing overlap with the tail end of my post from yesterday: to what extent does randomness undermine meaning? Michael was writing about a provocative proposal by Bernard Harcourt in a discussion he contributed to; Harcourt proposes making more aspects of criminal procedure explicitly random. Harcourt’s basic idea seems to be that the goal of completely rational punishment is a lost cause, and that therefore the criminal justice system should openly embrace randomness. As several of the commenters on Harcourt’s proposal suggest, however, even the attempt to justify punishment may serve some goals. Or as Michael himself puts it: “Randomization . . . would radically undermine the social meaningfulness of the sentencing process.” A random sentence is a sentence without meaning.

This seemed very similar to an issue in copyright law that I touched on at the end of my very long post yesterday. One of the troubling aspects of many photograph copyright cases is the amount of randomness that often enters into photographs and videos. Copyright protects the expression of ideas. To qualify as expression, the material has to convey some idea or purpose to its audience; it has to mean. Randomness, however, seems to undermine meaning. Mannie Garcia unintentionally expressed the tension nicely when he described how he captured his now-famous photograph of Obama: “And then it happened: Boom, I was there, I was ready.” To the extent the “boom” outweighs the “I was ready,” it also seems to outweigh meaning. Abraham Zapruder did not intend to convey any message at all about the Kennedy assassination; he was simply there recording when it happened.

There may be another parallel between copyright and sentencing. There are recent copyright decisions expressing the view that an author can go too far in the other direction. To the extent that a set of data is rigidly determined, not by randomness, but by a set of rules or external constraints, courts have held that such data fails to “mean” as well, and again is not copyrightable. This would appear to mirror the recent turn in the constitutionality of sentencing. Random sentences are bad; but so are sentences in which all discretion is removed from the sentencing judge. The Supreme Court has never put it this way, to my limited knowledge, but the intuition might be that such sentences also fail to mean anything; they are not expressions of society’s determination of the seriousness of that particular offense. Meaning, like perhaps all of life, appears to lie in the border between order and chaos.

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Judge Cannon and the Continuity of the Profession

old-courthouseEach May the Milwaukee Bar Association holds an annual Memorial Service to remember lawyers in this region who have passed away within the previous year. It occurs in the Ceremonial Courtroom of the Milwaukee County Courthouse and is attended by a variety of judges, lawyers, family of deceased lawyers, and others. When I was appointed dean in 2003, my friend, Tom Shriner, invited me to give the annual Memorial Address, in light of my association with the late Dean Howard B. Eisenberg, and I have tried to attend the event each subsequent year as well. This year, one of the “responses” to the Memorial Address (or remembrances) was delivered by Tom Cannon, director of the Legal Aid Society of Milwaukee and former faculty member of the Law School (see this previous blog post by Professor Blinka). Tom remembered his father, the late Judge Robert C. Cannon, L’41.

Here is a bit of the beginning of Tom Cannon’s remembrance:

Dad was probably destined to become a lawyer. By the time he was born in 1917, his father was already emerging as an iconic figure in the legal profession. Dad’s uncle, Ed Carey, was also a lawyer. And many of Dad’s numerous cousins became practicing attorneys as well. These included the Jenningses, Foleys, Tierneys, Gillicks, and Flemings — all well-known, multi-generational legal families in Milwaukee.

One of Dad’s earliest memories was sitting in a high-ceilinged courtroom in the ornate old Milwaukee County Courthouse on what is now Cathedral Square. His father was trying a case there against a cousin, Joe Tierney, Sr. As the sun streamed in through a bank of tall, stately windows, and crept toward the jurors’ faces, Dad watched his father walk over and slowly draw the shades. Perhaps it was that early moment that influenced him to become a lawyer.

Tom’s remarks are well worth the few minutes that it will take to read them — and to remember both Judge Cannon and others of our forbears who contributed much to society through the legal profession. You can find a link to them here.

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