« Thanks.... | Main | NLRA Trumps ADEA in 14 Penn Plaza; Whither Gardner-Denver? »
Wednesday, April 01, 2009
Counting (Foreign) States?
The new issue of the Harvard Journal of Law and Public Policy is out, and it includes some papers from the 27th Annual National Federalist Society Student Symposium on Law and Public Policy. As seems common with this fine event, the proceedings include some fantastic short articles by terrific scholars, including especially good pieces by Doug Laycock, Henry Smith, and our own Rick Garnett -- and the paper I discuss below, by our own Rick Hills. (As also seems common with the papers from FedSoc symposia, it also contains a couple of clunkers -- pieces that, in trying to refute the idea that law is politics, seem rather to prove the point. With all due respect, the piece by Justice Stephen Markman of the Michigan Supreme Court seems to fit the bill this time, and it is very effectively eviscerated by Richard Primus. Similarly, a recent issue included a terrible piece by Phyllis Schlafly.)
Posted by Paul Horwitz on April 1, 2009 at 10:49 AM in Paul Horwitz | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef01156fb1aa87970b
Listed below are links to weblogs that reference Counting (Foreign) States?:
Comments
Thanks for the mention of my piece, Paul. Just a clarification: I distinguish between Harlan's "tradition-based theory" and the sort of state-counting that goes on in Atkins (page 26 of the essay). Harlan's theory strikes down states' laws only if they are inconsistent with the vast majority of other states' laws -- say, laws like CT's extreme version of the Comstock Act at issue in Griswold v. CT. Atkins, by contrast, strikes down sentencing policies adopted by 40% of the states representing about half of the nation's population. Such states are hardly flagrant outliers from a solid national consensus.
I suggest the only point of polling the states in cases like Atkins is to make sure that a theory of justice devised by the justices does not depart too far from the beliefs and values of the median state. It hardly follows that state laws struck down by the Court depart drastically from the views of the median state: It might be that both the Court's theory and the state laws that the Court strikes down are both pretty close to the median views of a closely divided nation. This is what I mean when I say that state consensus is merely a limit on, and not a source of, the judicially defined norm: The Court essentially makes up its own theory of justice, counting states' laws only to be sure that judicially defined morality does not contradict popular morality in a majority of states.
Could the Court also count up foreign nations' laws for such a purpose? Sure, but my own view is that the Court would not be very concerned that its judicially defined values violate international norms. Otherwise the Court would not have adhered as much as it did to the doctrine of Roe v. Wade (for instance, the viability line), which is far more libertarian than the laws and norms governing abortion in most other nations. Likewise, the Court would not stick with Miranda's exclusionary rule, which is an international outlier.
My own realist -- perhaps cynical -- view is that the Court simply does not want to be lambasted by domestic politicians for adopting norms inconsistent with the views of a majority of those politicians' constituents. In other words, the Court is behaving like the majoritarian institution that Michael Klarman claims that it is: It is taking crude polls to make sure that its decisions fall within the zone of acceptability for most Americans. Given that the Court's state-counting as serving purely domestic political purposes, there really is not much point for the Court to be overly attentive to the norms governing foreign regimes: Contradicting German or French norms may raise a few eyebrows at the next conference in Davos that Justice Kennedy attends, but it will not result in a backlash that will be felt in judicial confirmation hearings. Contradicting the norms of Ohio or other "median states" will. I submit that state-counting of the Atkins variety is to insure that such a domestic backlash does not occur.
Posted by: Rick Hills | Apr 1, 2009 9:44:21 PM
The comments to this entry are closed.