S. Ct. Confirmation Battles Updated
I have moved the discussion of the Ponnuru / Tribe debate to a new blog because I agree with the suggestion of a commentator that it could undermine the perceived independence of SCOTUSblog. That blog — which really only functions to host my response to the substance of Ponnuru’s claims — is here.
Ponnuru’s gaffe highlights one of the pitfalls that lay pundits face when writing about the law : Lay people don’t have an eye for reading briefs. Writing, and reading, a brief is an art; it takes a practiced eye and an intuitive grasp of different drafting strategies; and that takes practice–for most lawyers, thousands of hours of billable practice. Lay people tend to read briefs like they would magazine articles or other policy articles; for many straightforward briefs, this works. But it can lead them to miss much of what is actually going on in some carefully crafted brief.
As Steve says, Prof. Tribe–in one section of the brief–included what practicing lawyers would recognize as a substantive “Ninth Amendment” argument. It was drafted with what practicing lawyers call a “soft touch”: That is it advances the substance, in order to tee it as a basis for decision, but coats it with lots of oil and tricks from the laywers’ toolbox to make it go down smoothly.
Here’s how I imagine his reasoning went: Tribe guessed the court might be open to rule in an outcome-oriented way, if they could find a formal vehicle for their ruling that they could accept without committing themselves to solving a number of highly contentious formal, theoretical constitutional arguments about text or original meaning, and without committing themselves to a rule that couldn’t be cabined in a later case. He choose the Ninth Amendment as one possible vehicle (probably because it didn’t have the negative precedent the P&I Clause does), but recognized it would only work if he could avoid freighting it with a lot of difficult formal analysis of the Amendment.
Ordiniarly, one would try to write a soft Ninth Amendment argument in a “stare decisis” vein–i.e., by quoting heavily from favorable language from past cases, thereby avoiding difficult analytical issues raised by textualist analysis and original intent. Unfortunatley, the Ninth Amendment had little precedent . . . but the P&I Clause did. Tribe solved this by pitching a Ninth Amendment argument creatively coupled with P&I precedents, ones that reflected the functional substance of the Ninth Amendment argument, and by using rhetoric to provide an appearance of legal substance. This was a difficult argument to write: Putting in too much analysis of the P&I precedent–discussing incorporation and why the 9th was the better vehicle–would make his argument “sound” labored and complicated and therefore weak. So he pitched it with a light 3-step touch . . . (1) gently suggesting the Ninth as the formal basis for decision (hence the cite to the 9th and the inclusion of its text in the formal section heading), (2)rhetorically linking the 9th with the concept of “unenumerated rights” at the front off the section and (3) using that concept of “enumerated rights” as a rhetorical bridge to he link the 9th and the follow on discussion of precedent without weakening the argument with lengthy formal analysis of the relationship between the 9th and the P&I Clause.
Every lawyer faces an argument that has a tough road in court and in which they have to do a lot of artful weaving when they write it out; every lawyer would consider all of this artful weaving part and parcel of making a “legal” argument “for” the formal authority advanced as the basis for decision. That’s what we are paid lots of money to do everyday. For example, in a much more prosaic setting, I did much the same thing in a 12(b)(6) brief in a class cert case: I advanced a constitutional choice of law argument based on BMW, but one that didn’t have much precedent in its favor (only a couple of stray sentences of dicta from BMW.) Thus–after many, many hours of billable research and thought–I decidced to put the substance of the argument in only a couple of sentences. But to give it weight in the brief, I put it in a section that referred to “constitutional choice of law principles”; and devoted the bulk of that section–pages of argument–to describing how ordinary non-constitutional choice of law principles would yield the same outcome, thereby making the court more comfortable with the minimalist constitutional claim. A lay person might say I didn’t really “make” a constitutional argument–because I didn’t write a small treatise on constitutional choice of law. But the whole purpose was to tee that argument up for the court in a way that gave the appearnce of inevitablity to it without saddling it with complicated analytical baggage. And, it worked: The court adopted the constitutional argument–in no small part, I like to think, because I decided to advance it with a soft touch. Here, I conider myself to have “advanced” a successful constitutional argument–despite the fact that I made a strategic call to invest the minimum possible amount of ink on the topic.
All lawyers know that the strongest way to advance some arguments is by using lots of finesse–just as good athletes know that the strongest move to the goaline sometimes requires serious economy of physical energy. Only a lay person would read an artfully drafted legal argument and interpret the artfuly drafting to be in derogation of the formal argument presented.
Comment by Fred — March 8, 2005 @ 4:09 pm