Tuesday, December 1, 2020

JUSTICE IN THE SERVICE OF LIBERTY

 

DECEMBER 2020

Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it.  –Judge Learned Hand 

If we were to ask ourselves what the Constitution represents to us as citizens of a constitutional monarchy, we would likely respond that it stands as the symbol, par excellence, of our rights and responsibilities as citizens. The Constitution forms a compact between the monarch and his people wherein the citizens of Westarctica, in exchange for recognizing and respecting the lawful constructs and prerogatives of the crown and of the state, are granted certain rights and freedoms to pursue a meaningful citizenship experience. In short, the Constitution symbolizes our liberty. 

The laws of a nation and its constitution, when properly and liberally conceived, are proposed and enacted for the purpose of ensuring for the citizen, individually, and for the people, corporately, the greatest possible degree of freedom to live meaningful lives and to pursue every legitimate opportunity to be happy in the living of their lives. 

Limits to the freedoms and liberties of the citizen and of the people may be and must be drawn from time to time, however, and are, therefore, drawn by government through law whenever those freedoms and liberties happen to clash with the public need to preserve the integrity of the fabric of civilization, broadly and globally, and the stability of the civil order more locally. Liberty, after all, does not mean limitless personal freedom characterized by rights without responsibilities; that is the definition of adolescent immaturity, not of liberty. 

Liberty is not license, nor is it mere libertarian autonomy. It is much more than that. It is much loftier than that. It is much more complex than that. Liberty, in the context of the Western liberal order, is, at heart, the freedom of the people to create for themselves a good, even a great society in which to dwell together in peace, harmony, and prosperity. And I would, here, stress the word “together”, for no man is an island unto himself. The notions of “liberty” and “society”, therefore, are not separate but, rather, they go hand-in-hand. 

Arbitrary power is most easily established on the ruins of liberty abused to licentiousness. 
-George Washington 

Any society erected properly under the auspices of Western liberal civilization will purpose to be a fundamentally just, fair, and generous society which favors communal prosperity, and will be one, furthermore, in which the humanities are not merely permitted to flourish but in which their flowering is, in fact, prioritized. What kind of a life is a life without culture, after all? 

The ability to enjoy a good, happy, and culturally rich life--what the Italians so rightly and so charmingly call “la dolce vita”—depends entirely upon the kind of civil society we erect for ourselves as a people. Our freedom to be ourselves, individually, within and as a part of such a goodly society is largely what we mean when we talk about “liberty”. 

The role of the law and the constitution is to establish both the foundations and the framework for the building of the civilized order which bestows upon the citizen the freedoms and opportunities he or she requires to be happy and fulfilled within it while at the same time lending integrity and durability to the order itself. A civilized order, after all, is centered not upon individuals but upon a community composed of numerous individuals, each of whom has a different set of personal priorities. Where an individual’s personal priorities intersect with the contrary priorities of another individual, there is the law. Likewise and moreover, where an individual’s personal priorities intersect with the contrary priorities of the community as a whole, there is the law. 

The role of the law in the civilized liberal order of society is to inform the citizen that he is both free and valid while at the same time reminding him that his neighbor is also free and valid and that, together, they enjoy and are responsible for the success of a common enterprise. That enterprise is nothing less than the building and curation of a just, peaceable, and meaningful community to be enjoyed by all involved and by posterity to follow. The citizens of that community will have together agreed upon a compact, implicit in which is the idea of individual self-sacrifice for the good of the social order. 

In the context of such a compact, the intelligent and evolved citizen knows and understands that it is incumbent upon him to make certain adjustments to his personal priorities, from time to time, in order to accommodate those of his neighbor, and, moreover, those of the community as a whole. He knows and understands that similar adjustments have been made by others to accommodate his own personal priorities. The individual citizen, therefore, willingly and cooperatively yields to decisions made by the community together in legislative congress--decisions which govern the restrictions of individual priorities in favor of the more paramount priorities of the whole community. 

To illustrate this, we might look to the idea of freedom of expression. While individuals must be free to express themselves through speech and other means, limits to individual freedoms necessarily arise when the greater good of the community demands as much. The law, for example, in a just and liberal society, will permit one artist to express himself through pen and ink as he draws and publishes a satirical cartoon lampooning the hypocrisy he observes in the very government which creates and enforces that society’s laws. The law will not, however, permit another artist to express his enthusiastic endorsement of the policies of the government by means of graffiti sprayed onto a public building or monument. 

The basic distinctions between those two avenues of personal expression are obvious and the immediate reasons why laws permit one but not the other need hardly be explained. Perhaps less instantly obvious, however, is the truth that one of those forms of expression, whether consciously or unconsciously, buttresses civilization, in a general sense, whereas the other, whether consciously or unconsciously, undermines it. And in this we can see that instinct and the imperative to preserve, protect, and fortify the fabric of human civilization far outweighs in importance the freedom of the individual to express himself as he sees fit. 

Consenting to the notion of responsible and ordered self-expression which requires a modicum of self-restraint for the greater good of the community is a form of sacrifice. Sacrifice, it might well be said, is the water of liberty’s seed and it is absolutely crucial to the building and maintenance of the society of a free people. Freedom, which has by peoples throughout human history only ever been gained by sacrifice, is likewise only preserved and nurtured through sacrifice. 

This sacrificial ingredient which is wholly necessary to authentic liberty is scarcely to be found in the egocentric construct of strict personal autonomy which, through aped and redefined terminology, masquerades as liberty but which is in actuality little more than an immature selfishness upon which no durable society worth participating in may be realistically based. 

Liberty is not the avoidance of our civic responsibilities or of our responsibilities as brothers and sisters to one another as members of the human race. Liberty is not merely fending for oneself and leaving it up to other individuals to do likewise, according to their abilities. Liberty is not merely leaving one’s neighbor alone in the hopes of being likewise left alone to do as one pleases at any given moment. What a hellishly brutal, severe, and deformed society must flow from the notion of the absolute autonomy of the individual. 

Non serviam!
-
Lucifer
 

Liberty, instead, is our very freedom to form, together, the best society we have it within ourselves to become and to fully participate in it. If the law provides the necessary framework in which to accomplish that objective, then the courts, as agencies of the law, stand as the indispensable venues of arbitration for the ministrations of justice within that framework. 

The need for courts and judges may seem a puzzle on the surface. If, after all, we have laws which inform us of the limits of our freedoms, of what need have we of judges and courts to verbalize to us what is clearly written in the law? The answer, naturally, lies in our very humanity. Sentient human beings are not robots programmed to confine their actions to written programs. Violations of the law occur, on the one hand. On the other hand, the very meanings of our written laws may be disputed. 

It is the role of the court—of the judge—to listen to conflicting accounts of behaviors vis-à-vis the law when it is alleged that behaviors have violated the laws of the land or the rights of persons. That much is obvious. It is also the role of the courts, however, to interpret our laws when the meanings of the texts are disputed by two parties. And, as we know, it is the role of the highest court to decide whether or not our laws conform to the Constitution. 

In order for judges to properly adjudicate cases or rule on questions, however, it is necessary that judges be allowed to be as fully human as any other citizen. Just as private citizens are not robots who follow programs, neither are judges, nor should they be expected to be. A judge will hardly judge anything well and properly by narrowly restricting his jurisprudence to the literal meanings of written texts frozen in time. Anybody can do that. 

A judge, however, endowed with a public trust, is expected to be more than a kind of legal algorithm. A judge has been seated at his bench with a mandate to employ not only his reading glasses, but his learning, his intellect, his wisdom, his character, his compassion, his empathy, his knowledge of the law, his understanding of the needs and expectations of the community, his grasp of the multiple facets of the situation in hand, and, indeed, his very humanity in the service of justice. 

A judge must see and understand the broader context of the law in the light of the present day and of the expectations of the present moment, rejecting the temptation to view the law as a one-dimensional historical curiosity written down in ages past, but treating it, instead, as a multi-dimensional living thing to be viewed from a variety of angles through multiple prisms, the understanding of which will necessarily evolve, develop, and transform through the years along with the very community of people for which it was written. 

One may be forgiven, I think, for detecting something hypocritical among those who typically rail against what they like to call “judicial activism”. The hypocrisy of which I speak lies, of course, in the satisfaction such persons exhibit when judges happen to be “active” in their favor, or conversely in the rage they exhibit when judges decline to be “active” in favor of a cause which they embrace. 

Opponents of “judicial activism” and advocates of “originalism” or “strict constructionism” will argue that judges who deliberate outside of a strictly literal paradigm are guilty of “legislating from the bench”, a singularly puddingheaded phrase which implies that deploying a global perspective in the craft of interpreting the law Is tantamount to usurping the prerogatives of the legislative branch of government. 

Is a judge to be faulted for reading and interpreting the laws and the constitution of his community with eyes trained to absorb context broadly rather than parochially and narrowly? Does a judge “legislate” when his jurisprudence admits of a broad and comprehensive understanding, not only of the written word of the law in the context of the times in which it was written, but also of the past priorities of his community juxtaposed against the community’s present day priorities, with an eye toward how his decisions or rulings may impact his community, not only today, but in the future? 

The charge of “judicial activism” levied against a nation’s judiciary tends to amount to little more than a reaction against judges who have the audacity to think, and at the core of that, of course, is a more fundamental reaction against a society’s natural tendency to evolve. 

As some would have it, it is the role of the judiciary to serve as little more than a pair of brakes applied to a community’s progress. But is it really the role of the courts to dictate the pace of progress? What sort of tyranny from the bench does that notion propose? What if it is the role of the judiciary, instead, to cooperate with the legislature and the executive in deftly steering the community and keeping it stable at whatever velocity the people might, in their wisdom and energy, decide to travel forward? 

The purpose of a nation’s constitution is hardly to shackle the future to the expectations of the past. What nonsense to suppose that a nation’s founding fathers should have wished to dictate for all time the pace of the nation’s progress, growth, and development? What foolishness to suppose, furthermore, that they would have had in mind a nation loath to evolve? How preposterous to imagine that the authors of a constitutional document would not want posterity to shred it to bits if keeping it intact meant that the nation, itself, would stagnate and that its growth would be stunted? Does a constitution, after all, exist for the sake of a people or does a people exist for the sake of a constitution? 

And do we expect, therefore, that judges should somehow not possess the same intelligence and common sense as the people they serve? Should they not also see and understand the need for a community to adapt to changing times and changing circumstances? If we do expect that, we are effectively telling one of our three branches of government that it ought to walk lamely and blindly behind the other two branches, failing our society and hampering its growth at every turn. I’m not sure that arrangement quite works to civilization’s advantage. 

At the end of the day and in the last analysis, the law is about people, and the courts serve their communities best when they keep people in mind, prioritizing the greater good of the people over the strict letter of the law. Is that to say that laws and words mean nothing? Of course not. Liberty, itself, has for a guarantor the rule of law and the rule of law must be both cherished and safeguarded...but sensibly, intelligently, realistically, and flexibly. To be implacably rigid in the interpretation of the law is to ensure that the law, itself, becomes a hindrance rather than a help. 

Liberty means responsibility. That is why most men dread it.
-George Bernard Shaw 

The first decades of the 21st century have witnessed and continue to witness an erosion of the liberal international order established after the Second World War, and what is eroding that order is none other than an alarming resurrection of the very ideas and philosophies espoused by the nations of the Axis which were defeated in that conflict by the allied democracies in their righteous might through much blood, sweat, sacrifice, and tears. 

The rise of the kind of governing philosophy which has no use whatsoever for the integrity of the law or of the rule of law (or even truth, itself) is a growing threat to the vitality and hegemony of the liberal order of free peoples. The order of liberty is threatened not only by its traditional antagonists but in these days by nations which had been understood to be the very authors and sworn champions of that order. For heaven’s sake; who, a decade ago, could ever have imagined such a vexing development? And yet here we find ourselves. 

To see and to comprehend what is going on within human civilization and to understand how much is at stake if we fail to preserve the democratic order is very much the responsibility of the judiciaries of the nations and communities which constitute that order. In these days, it is absolutely necessary that judges and courts take into consideration the fate of democracy, of liberty, and even of civilization, itself, when engaging in the mechanisms of their high calling. 

Judges, particularly appellate court and constitutional court judges, must, when ruling, bear in mind how each decision, each judgment, will impact the stability and vitality, not only of their own nations governed by the rule of law, but indeed of the global order of liberty. Too many have sacrificed too much over too many decades in furtherance of the cherished principles of that order to allow it to fail or falter, and so much concerning the success of that order depends upon the decisions made by our courts and our judges. 

As His Royal Highness’ most recent appointee to the bench of the Grand Ducal Court of Westarctica, I am the least qualified, the least astute, and the least worthy member of this distinguished body to don the honorable silks of the judiciary. What I lack in experience and degrees and in time spent here, however, I intend to make up for with an unshakeable commitment to the defense of the rule of law in the service of the people of Westarctica, always with their freedoms in mind, and always in the broader context of the defense and preservation of liberty, itself. 

I would adopt as my personal judicial motto the very title of this piece, “Justice in the Service of Liberty”. That is precisely how I conceive of the task which it will henceforth be my honor to carry out.

ASSOCIATE JUSTICE SIR JAMES R. MURPHY, KtS

The author of this blog was appointed to the bench of the Grand Ducal Court of Westarctica by HRH The Grand Duke on November 29, 2020.

GO WEST!
To learn more about Westarctica, visit https://www.westarctica.info/


Saturday, October 31, 2020

LAST RESORT NORTH OF SLEEPY HOLLOW

An appeal is when you ask one court to show its contempt for another court.
-Finley Peter Dunne

The Constitution of Westarctica establishes but a single court, styled the “Grand Ducal Court” (Chapter IV; Article 21) in which the plentitude of the powers of the judiciary are vested until such time as lower courts may be established according to the provisions of Article 23.

Have you given any thought as to whose role it is to establish the future lower courts which our constitution anticipates? You may well suppose that it must surely be a prerogative of the legislative branch. Had you so imagined, your instincts, although understandable and well-placed, have betrayed you.

According to Article 23, “The Justices of the Grand Ducal Court, and any officers they may appoint, have responsibility for establishing, staffing, and managing the lower courts.” 

And make no mistake, we aren't simply talking about the court appointing magistrate judges, here. No, the GDC is actually empowered to establish courts and to mint bona fide judges at all levels of the judiciary, save the that of the high court, itself. That's certainly a lot of authority and responsibility. 

Think about that. The Constitution grants the GDC powers normally reserved to a nation's legislative branch (the power to establish courts and jurisdictions) and also endows it with powers that in most constitutional monarchies would belong to the Crown through the executive branch (the power to appoint judges). 

That justices should beget judges as bishops beget priests is not a typical thing, after all, and one wonders how, exactly, they might go about doing that, procedurally speaking. One also wonders if future Westarcticans might not reconsider the arrangement. At the moment, however, that is what the Constitution prescribes.

So, what does all of that tell us about the Grand Ducal Court? A number of things, actually, but it conveys first and foremost the reality that the GDC is decidedly Westarctica’s high court--its “supreme” court, if you like--and a remarkably potent one at that. Once the lower courts are established in time, the Grand Ducal Court will stand at the pinnacle of the judicial system as our highest tribunal and our court of last resort, beyond which there can be no appeal.

That's a bit of a chilling thought, isn't it? The thought of a "court of last resort"...one final tribunal in which to argue your case in the hopes that the judgment goes your way. How high the stakes. How permanent the outcome. We like to think in terms of second chances or additional opportunities, don't we? Once we find ourselves standing before the nation's highest court, however, be it the US Supreme Court or the GDC, there are no more chances. We've used them all up and we have reached the end of the line. The power such a court has over our destiny, both as individuals and as a society, is immense, therefore.   

As with any high court, however, the authority of the GDC to exercise judgment or to rule on the constitutionality of laws is only as actionable as the Court’s docket permits it to be. In order for the Court to exercise its most substantial powers, it is necessary that cases, petitions, or questions are brought before it. A court may neither bring cases before itself, nor may it preemptively rule on questions which have not yet darkened its doorstep.

Compare the Court, if you like, to a Venus flytrap waiting for an insect to land within its grasp. It isn't able to reach out and grab a fly in mid-flight. When the fly lands, however, the trap closes shut. The matter is irrevocably in the court’s jurisdiction and the court’s power over the case is, indeed, supreme.

Are all supreme courts, however, as supreme as our own Grand Ducal Court? Well, no, as it turns out; not by a long shot, in fact. From country to country and from region to region, final tribunals vary in scope and potency. 

Let’s take, for example, the Supreme Court of the State of New York.

In my experience as a native New Yorker, folks who are not from New York tend to think of the whole of the state in terms of New York City…a brash, bustling, modern urban landscape dominated by skyscrapers and permeated by the sounds of motor vehicle traffic and emergency sirens. Autumn, however, is a good time to refresh our memories concerning that vast and brilliant rural, exurban, and suburban expanse of red, orange, and yellow Fall foliage which occupies the space between Canada and Pennsylvania…a land flowing with apple cider and maple syrup which we quaintly refer to as “Upstate”.

There are actually plenty of squabbles and differences of opinion among New Yorkers about what “Upstate” actually means, but we aren’t about to wade into that quagmire today. Instead, we will simply begin our journey into this topic using the “City that Never Sleeps” as our starting point, from which we will hop into a yellow cab and be driven northward up into the Hudson Valley to Sleepy Hollow. Once there, we will consider everything from that point on “Upstate”.

“Did he just say ‘Sleepy Hollow’?” Yes, he did. Sleepy Hollow, the village of Ichabod Crane and the Headless Horseman, is a real place on the map of New York State. The rest of Irving’s tale, of course, is fiction…one assumes.

Take a moment, if you like, to look around, breathe in the crisp autumn air, smirk at the teams of EMF detector-wielding paranormal investigators, and smell the ripening apples, but we can’t stay, I’m afraid. We’re going to hop back into our cab in just a moment because our ultimate destination, as it happens, is a bit further upstate than this haunting and legendary locale of Westchester County.

Certain it is, the place still continues under the sway of some witching power, that holds a spell over the minds of the good people, causing them to walk in a continual reverie. They are given to all kinds of marvellous beliefs, are subject to trances and visions, and frequently see strange sights, and hear music and voices in the air.
-Washington Irving, The Legend of Sleepy Hollow

As modern, trend-setting, fashion-forward, culturally diverse, and socially progressive as New York City is, New York State, as a whole, is a rather tradition-bound state. We New Yorkers still address our governor as "Your Excellency" (at least formally) and we refer to our mainline highway as the "Thruway". One of the original 13 colonies, New York was named in honor of James, Duke of York (later King James II). New York was the last colony to consent to the Declaration of Independence (abstaining throughout the Continental Congress), and she rather tenaciously clings to many of her oldest habits and conventions. New York’s court system is an excellent case in point, as we are about to discover.

Behold, then, the Empire State's Supreme Court, that colossus of judicial eminence. There, behind the bench, opposite the American flag, stands the gold-fringed royal blue flag of New York State, familiar to anyone who enjoys watching courtroom dramas on TV.

But why, you may ask, do we find New York's Supreme Court here, in Westchester County, so far removed from New York City?

The Supreme Court of the State of New York is actually a trial court, both civil and criminal. The New York State Supreme Court, as it happens, is not even a single body located in a single grand building within a single city. Instead, the Supreme Court, with 328 justices, is spread out across the state, with courthouses in each of New York’s 62 counties, including here in Westchester, where Sleepy Hollow is located.

If that seems a bit peculiar, it gets stranger, still. If you should happen to lose your case in the Supreme Court you can always appeal it. 

Appeal, you say? To…what?

Cases adjudicated by the New York State Supreme Court are appealed within itself to an appellate level of the Supreme Court. 

Wait...what? 

Yes, that's right...should you find yourself so unfortunate as to lose your case in the Supreme Court, in a New York minute you can simply appeal to the Supreme Court to have your case tried again in the Supreme Court. Man, what a break; a supreme court with second chances! Did we not just reflect upon the chilling finality of judgments in supreme courts?  Well, what can I say? This is New York, baby. 

About now you’re thinking those ghost hunters in Sleepy Hollow chasing after the Headless Horseman seem sane compared to New York’s court system.

That isn’t the end of it, however; it gets even weirder. Should you happen to lose your case in the Appellate Division of the Supreme Court there is a chance that you may yet be able to appeal it. Yes, it's true. In the Empire State, it so happens that there is a tribunal that is higher still than even the highest tier of the New York State Supreme Court.

Well, great Caesar’s galloping ghost; what could this preposterously lofty entity be…this towering court of courts which imperiously looks down its toffee nose at even the omnipresent Supreme Court of the State of New York, with all of its 62 locations, its two tiers, and its second chances, treating it as a mere lower court?

Is that why we have traveled so far outside the city? Is this court so great that only distance will enable us to view her in her entirety?  Surely this court’s justices must be gods, or perhaps gigantic and fearsome flaming disembodied heads floating in a chamber akin to that of the Wizard of Oz, located, perhaps, in the uppermost stories of the Empire State Building whence they hurl down rulings like so many lightning bolts from the heavens.

Do I hear the sound of a galloping horse? It’s getting dark and we really ought to get out of here, pronto; Sleepy Hollow is no place to be at the witching hour on Halloween. Driver, head to Yonkers and take the Thruway north; we’re going to Albany.

Albany, gentle readers, not New York City, is the capital of New York State. Many people not from New York are surprised to discover that. Many people who live in New York City are also surprised to discover that, but that’s another matter for another blog; we won’t go there. This is a polite and respectable blog.

In any event, far upstate from the hustle and bustle of the Big Apple in the comparatively small and sleepy capital of Albany, seven judges act as the guardians and supreme interpreters of the laws and the Constitution of the State of New York.

Here in the Empire State, the supreme tribunal and court of last resort is the august and venerable Court of Appeals, which, unlike New York’s Supreme Court (supreme in terms of findings of fact as opposed to questions of law), is not scattered all across the state and isn’t divided into two tiers. Comparable to most state supreme courts (which are "supreme" in the ordinary sense), New York’s Court of Appeals is located in one place, and beyond it there is no further appeal on the state level. Decisions by the Court of Appeals are binding upon all lower jurisdictions, including the Appellate Division of the Supreme Court. The next level of appeal beyond the New York State Court of Appeals is the United States Supreme Court.

You may have noticed that judges who sit on the highest courts tend to be called "justices" whereas those on the benches of intermediate level courts are called "judges". That custom is reversed in New York State, where "judges" and not "justices" sit on the highest court. The presiding judge of the Court of Appeals is known as the “Chief Judge of the State of New York”. New York’s chief judge (as of this posting the Hon. Janet DiFiore) presides not only over the Court of Appeals, where she sits as primus inter pares, but over the whole of the Unified Court System of New York State. In her latter role she is assisted by the Chief Administrative Judge, who is responsible for the day-to-day supervision of the court system.

Disappoint you though I may, the judges of this super-supreme court are not, in fact, flaming disembodied heads hurling lightning bolts down from a great skyscraper, but rather a group of typical New York lawyers who hold court inside a charming old courthouse downhill from the Capitol, far removed from the imposing modernist monumentality of Albany’s breathtaking Empire State Plaza.

Governor Nelson Rockefeller, in the 1960s, sought to rid New York’s capital city of the old and rundown neighborhood stretching between the Executive Mansion and the Capitol called “The Gut”. Through sheer willpower and not without controversy, he did it, bulldozing the entire neighborhood, relocating its inhabitants, and building in its place a vast and somewhat intimidating modern capitol complex of concrete, marble, stone, and water radiating from the magnificent old Romanesque-style Capitol toward the governor’s residence. This was urban gentrification on steroids. 

Five great Brutalist towers rise up from the plaza between the Capitol and the International-style New York Museum, the largest of which (the Corning Tower) is the tallest building in Upstate New York. An enormous egg-shaped structure (aptly named “The Egg”), which is a center for the performing arts, is the most visually arresting architectural element of the complex. The platform of the plaza, itself, featuring three reflecting pools, is actually the rooftop of the Concourse, a vast indoor city-within-a-city which happens to be one of the largest buildings in the world.

The Court of Appeals, although originally located in the Capitol, did not remain there long enough to be a part of this immense imperial setting. In 1917, long before the justices of the U. S. Supreme Court would get their own building, the judges of the Court of Appeals vacated the New York State Capitol for a home of their own, selecting a very old building on Eagle Street which the state renovated and expanded in order to accommodate their honours.

Originally known as “State Hall”, the handsome neoclassical New York State Court of Appeals Hall was erected in 1842. It looks just like what you would expect a courthouse to look like, so much so that it seems difficult to comprehend that it wasn’t actually built as a courthouse. Faced with white marble and featuring a columned façade with a triangular pediment, the Hall is crowned with a low-lying dome.

Adding to the deceptive notion that the building could not ever have been anything but a courthouse is the antique yet sumptuous courtroom, itself, in which oral arguments are heard. When one takes the public tour of the Court of Appeals, however, one finds oneself standing in mild disbelief as the guide explains that the courtroom is, in fact, the original courtroom that was located in the Capitol prior to 1917. The courtroom was considered so venerable, as it happens, that the judges insisted upon taking it with them when they moved, and so it was disassembled, moved down the hill, and reassembled inside State Hall.

The courtroom was certainly worthy of preservation, having been designed by the great Henry Hobson Richardson. The lord chief justice of England and Wales, Lord Coleridge (in office 1880-1894), had once, on a visit to Albany, enthused about the beautiful New York Court of Appeals chamber, calling it “the finest courtroom in the world.” Small wonder, then, that the court wasn’t about to leave it behind.

I have been inside the New York State Court of Appeals (these photos were taken during a recent visit) and I can attest to the compelling handsomeness of the silent, red-carpeted courtroom. It is not by any means a very large chamber, mind you, and has none of the daunting majesty of, say, the US Supreme Court, but it certainly invites respect and reverence. It seems not unlike a dignified and well-appointed secular church, in a way; when you’re there, you find yourself walking with your hands folded and speaking in hushed tones.

From the splendid oak walls of this room where history has been made time and time again, painted portraits of past judges of the court look down at visitors, most notably that of John Jay, front and center. Jay, the first chief justice of the United States and second governor of New York, stands out from the rest, not only on account of his portrait’s central position, but also because of his dramatic billowing robes of scarlet and black silk. The portraits continue out into the similarly paneled vestibule of the courtroom, the area looking very much like something out of “Boston Legal”.


The bench is an intricately carved masterpiece of the woodworker’s craft, featuring a handsome rendition of the state’s coat of arms in the center, where the chief judge sits. Behind the bench rise seven high-backed chairs upholstered in leather, one for each of the judges. Just behind the chair of the chief judge is a hidden door from which the judges emerge to take their places at the bench to cries of "Hear ye! Hear ye! Hear ye!" The best part of the public tour, however, is that when it ends, the guide presents you with a pencil shaped like a judge’s gavel as a memento of your visit. A nice little touch, that.

Court of Appeals Hall is located in a perfectly lovely area of the capital city marked by exquisite architecture, and is situated directly across the street from a charming, well-shaded park with a splashing Victorian fountain. It seems a world away from the overwhelming modern bureaucrascape of the Capitol complex.  A walk through the quaint and quiet neighborhood of the Court of Appeals (which seems to be an uphill walk in any direction) makes you consider that the judges actually chose rather wisely when opting to move out of the Capitol. It’s rather as if they wanted to get away from the hustle and bustle of politics on the hill, and they certainly managed it.

Part constitutional court, part appellate court, part court of cassation, the New York State Court of Appeals is the cat's meow of New York's court system and the fact that it has its own structure in its own charmed environs downhill of the Capitol truly underscores its independence. 

If by now you've surmised that what's going on with New York's peculiar, upside-down judiciary amounts mostly to a simple reversal of federal nomenclature you aren't entirely wide of the mark, although I don't get the impression they turned it all on its head arbitrarily; there is a bit more to it, in fact. 

The New York State Court of Appeals as an institution dates to 1847 when, by a new state constitution ratified that year, it was created to replace the old Court of Chancery, a superannuated institution presided over by the chancellor of New York and dating back to the days of British rule. Prior to 1847, the Court of Chancery was the high court of New York and the chancellor, with a role modeled on that of the lord chancellor of England, was the highest judicial figure in the state. The office of Chancellor of New York was abolished when the Court of Chancery was dissolved.

The Court of Appeals also replaced the “Correction of Errors” aspect of the old “Court for the Trial of Impeachments and the Correction of Errors”. Both the Court of Chancery and the Court for the Correction of Errors, as more senior vestiges of the colonial judicial system, were above the state Supreme Court, which is why the Court of Appeals which replaced them is likewise superior to the supremes. The Court for the Trial of Impeachments (now styled as such) still exists on paper, incidentally, but is only convened as necessary (the last time was 1913).

Still, these colonial era precursors to the Court of Appeals were not, as it happens, the oldest courts in the state. The New York Court of Common Pleas, founded in 1686, was, at the time of its dissolution in 1895, the most antique common law court in New York. The Court of Common Pleas succeeded an even older court called "The Worshipful Court of the Schout, Burgomasters, and Schepens" instituted by the Dutch in New Amsterdam in 1653. The most ancient legal system in New York, however, is that of the Iroquois Confederacy, dating back to the 12th century. 

The Grand Ducal Court of Westarctica as established by the Constitution of 2020 also has a traceable lineage back in time, as it happens. It succeeds a version of itself established by Government Ordinance 001 issued September 15, 2019, and that Grand Ducal Court is the successor to an even earlier court by the same name, established by the Grand Ducal Mandate of 2004. Although appeals courts and “independent” courts were also established by the Mandate, the Grand Ducal Court was nevertheless indentifiable by the language of the document as the court of last resort for the whole of Westarctica.

The Grand Ducal Mandate was suspended by the “Policy Statement of the Transitional Government (issued by the Prime Minister and Protector of Westarctica)” in 2010 and with it, the courts. The subsequent “Charter of Westarctica” of 2010 makes no mention at all of an independent judiciary.

Although detailed language pointing to the idea of a judiciary is found in the older Achean Civil Code of 2002 with numerous general references to “civil courts”, neither the Civil Code nor the adjacent Royal Code explicitly constituted or erected a distinct court or judicial entity by any unique name or title. With lengthy chapters devoted to “civil death” and “acts of decease”, however, the Achean Civil Code gives Washington Irving a run for his money in the area of eerie prose. 

THE AUTHOR OF THIS BLOG IS THE
 CURRRENT CLERK OF THE GDC

GO WEST!
To learn more about Westarctica, visit www.westarctica.info



Thursday, October 1, 2020

BEYOND JUDGE JUDY: Rulings from the Higher Benches


If you’ve ever been to small claims court, or, for that matter, if you have ever watched Judge Judy on television, you're familiar with the concept of a judge hearing from the plaintiff and the defendant in a case and asking them questions in an attempt to get to the bottom of things before rendering a verdict in favor of one party or the other. 

Moving up the legal ladder a bit, above and beyond the jurisdiction of Judge Judy, you may have acted as a juror in a criminal trial, or, if not, you’ve more than likely seen a television program or a movie in which the verdict of the court is rendered by a jury before sentencing is handed down from the bench by the judge. 

“Verdict” is the language used to describe the decision reached by a lower court or a trial court. 

When we move up to the higher appellate levels of the judiciary, however, the vocabulary begins to change. We tend no longer to speak of “verdicts” but of “rulings” or “decisions” supported by “opinions”. By “opinion” we mean a court’s detailed reasoning for ruling one way or another on a particular question of law. An appellate court’s opinion acts as binding precedent which all lower courts within its jurisdiction must then observe going forward. 

Trial courts and lower courts have no need to issue opinions along with their verdicts. The verdicts of trial courts are merely rulings based upon findings of fact in a particular case. Above and beyond the trial court level, however, courts will tend to examine questions of law in a more general sense. The decisions made by higher courts on questions of law require buttressing in order that those decisions may enjoy a sense of jurisprudential credibility and durability, and that is precisely what opinions provide rulings with. 

An opinion will reveal a judge’s mind on the question which has been decided, citing case law precedents, and will serve as a general apologia for the decision of the court. In reviewing the collection of opinions issued by any given appellate court judge throughout his or her career, one is able to get a sense of that judge’s personal jurisprudence, or judicial philosophy. 

The opinion adopted by and issued by a court to support its ruling explains to the lower courts, the broader community it serves, and posterity, how the court reached its decision and why, citing legal texts and precedents. The court's opinion is rooted in law and the constitution.

Without judicial opinions to support them, the rulings made on questions of law by the upper courts would suffer from an indecorous arbitrariness and would be fragile as glass, easily shattered by subsequent rulings--rulings which might be equally arbitrary in nature. The Law, itself, would suffer as a result, becoming an inconsistent and unreliable thing. 

Your homework assignment is to look up “stare decisis”. 

The term “opinion” is most readily associated (in America, at least) with the United States Supreme Court, with the United States Court of Appeals (for any of the 13 judicial circuits), and with state supreme courts. US Supreme Court decisions on landmark cases tend to be the most newsworthy since they may dramatically impact the entire nation in one way or another. Think of Brown v. Board of Education or Roe v. Wade, for example. 

Have you ever wondered, though, about how the court’s rulings and opinions come together? With anywhere from three to nine judges or justices sitting on the bench--some liberal, some conservative, and others perhaps something else, entirely--how do they manage to come to agreement with one another and issue one, harmonious opinion which represents the unified voice of the entire court? 

The simple answer is that they oftentimes do not. The more detailed answer, however, is the very point and purpose of this blog, so in this segment we are going to cover the steps involved before the opinion of the court is issued and we will also take a look at the way the court’s opinion is crafted. The process may surprise you. 

In order to examine this process, we are going to travel first to Washington, DC, and then to Ottawa, Ontario to watch the high courts of the United States and Canada in action. 

We will begin, if you don’t mind, at the handsome and iconic United States Supreme Court Building located just across the street from the United States Capitol in Washington. This seems to me as good a place as any to begin, particularly since the US Supreme Court finds itself front and center of the news these days with the death of Associate Justice Ruth Bader Ginsburg and the subsequent nomination of Judge Amy Coney Barrett to fill the late justice's vacant seat. 

The US Supreme Court Building was erected between 1932 and 1935 at the height of the Great Depression and owes its existence primarily to the lobbying of Chief Justice William Howard Taft (the former president, yes) who secured the funds for the project in 1929. Prior to 1935 the Supreme Court had convened inside the Capitol in a chamber formerly occupied by the Senate. 

US SUPREME COURT CHAMBER IN THE CAPITOL

Chief Justice Taft, not best pleased by the notion that the Supreme Court should forever share space with Congress, felt the nation’s highest court deserved a building of its own to highlight the independence of the judicial branch. The Supreme Court’s new home, in Taft’s opinion, should, furthermore, rival in architectural significance the executive branch’s White House and the legislative branch’s Capitol. 

Architect Cass Gilbert, therefore, was commissioned to design a suitably magnificent temple of justice to house the high court. He did just that, designing a perfectly splendid structure, the most impressive thing about it being the fact that it was completed under budget. Although Gilbert’s Supreme Court building had its critics (including Justice Brandeis who dubbed it the “Temple of Karnak”), it now serves as a kind of mecca for American lawyers, who all dream about presenting an oral argument there one day…or even about sitting on its bench one day. 

So, how does a case come before the Supreme Court, to begin with? Well, the typical starting point involves a party which is unsatisfied with the way their case was decided in a lower appellate court, such as the US Court of Appeals or the high court of one of the 50 states. When that happens, counsel for the dissatisfied party may (if the case qualifies) petition the Supreme Court to grant certiorari. A writ of certiorari issued by the Supreme Court compels a lower court to send the case record up for review. 

The Supreme Court, however, isn’t obliged to hear a case simply because somebody requests appeal; it doesn’t work that way. The “Supremes” get to pick and choose which cases they will hear and which cases they won’t. With 7000 requests each year, the court couldn’t possibly hear all of them. The Supreme Court typically hears 100-150 cases annually. The next time, therefore, you hear somebody exclaim, “I’ll take it all the way to the Supreme Court if I have to!” understand that the chances are not exactly in that person’s favor. 

The so-called “Rule of Four” now comes into play, which happens to serve as a nice little lesson about the way a collegial body of intelligent and civilized persons may intentionally make room for minorities, rejecting the temptation to govern itself strictly according to the dynamics of a tyranny of the majority. In order to observe this, we will, for a moment, surreptitiously invade the space of one of the sitting justices. 

Intruding upon Justice Stephen Breyer in his chambers, we note that his clerk (one of four clerks on his staff) has handed His Honor a memorandum which she has personally prepared for his review. The memo which she has prepared for her boss sums up a petition from a plaintiff whose case didn’t go the way he wanted it to in the US Court of Appeals for the Seventh Circuit. As it happens the majority opinion in that case was written by Judge Amy Coney Barrett. What a coincidence. 


After reading his clerk’s memo, Breyer determines that the outcome of the case has important constitutional implications and is worth the Supreme Court’s time. He’s now going to pitch the case in conference, hoping that he may at least rely upon Justices Sotomayor and Kagan, as well as Chief Justice Roberts, to go along with him in getting the case sent up from the Seventh Circuit. He won't need any more "yes" votes on this; the approval of those three justices, in addition to his own, will do. 

He’s in luck. All three are on board, and so is Justice Gorsuch, much to Breyer’s surprise. He's having a good day. Certiorari will be granted and the case will be sent up. Justices Thomas, Alito, and Kavanaugh do not seem exactly thrilled about it, all of them of the opinion that the Seventh Circuit's decision was correct and ought to stand without any further scrutiny. Oh, well; them's the breaks. 

In order for the Supreme Court to grant certiorari, at least four of the nine justices must be in agreement. Four justices seeing eye-to-eye have the power to bring a case before the court (even against the objection of the remaining majority). Interestingly, this “Rule of Four” is neither a law nor even a rule, but simply a custom of the court. If four justices may grant certiorari, however, it is also true that justices opposed to granting it may record their dissent, and they do (any of the justices may likewise dissent from a denial of certiorari in any of those many instances wherein four justices cannot be found to grant it). 

Even before we get to hearing an actual case, then, we can observe that the justices of the Supreme Court do not always act in concert, collegially reaching consensus through compromise. Majority rule is not, furthermore, the order of the day in all instances; minorities, too, can have power and influence (as we have just seen), and individual justices may also be unilaterally potent. Supreme Court justices are federal judges, after all, and each justice is assigned to one or more of the thirteen US judicial circuits as its “circuit justice”. Each justice is individually capable of issuing stays or injunctions under certain circumstances by way of “in-chambers” opinions. On occasion, those unilateral orders can be quite controversial. 

In 1953, for example, our blog’s judicial muse, Justice Bill Douglas, famously went rogue when he granted a stay of execution to Julius and Ethel Rosenberg, and again in 1973 when he issued an injunction halting the bombing of Cambodia. In both cases, the Supreme Court was not in session at the time and had to be reconvened by the chief justice at the government’s request in order to overturn Douglas’s maverick orders. “Good trouble,” we might call such actions, today. His critics at the time (particularly those who wanted to see him impeached) weren’t so generous, however. 

Once four or more justices have decided to issue a writ of certiorari to a lower court, commanding it to send a case up, the case is placed on the Supreme Court’s docket. Counsel for the petitioner then has a certain period of time to file a brief (which may be no longer than 50 pages) making his case to the court. There are no trials in the Supreme Court; the case is made almost entirely in writing by way of briefs.

Once the petitioner has filed his brief, the opposing party (called the “respondent”) is given time to respond with his own brief. Once the petitioner and the respondent have filed their initial briefs, they may then file subsequent briefs addressing the points made in each other’s initial briefs. 

The Solicitor General of the United States may now file his brief if he so chooses, arguing which way the government thinks the case should go (provided, of course, that the government isn’t already one of the two parties involved), and, finally, “friends of the court” (“amici”)—parties not directly impacted by the outcome of the case but which nevertheless have an interest in it—may, with the court’s permission, file amicus curiae briefs outlining their support for one position or the other. 

Although the briefs are really the stuff of the case, there is an opportunity for counsel representing the petitioner and counsel representing the respondent to be heard by the justices, and this time is known as “oral argument”. Since cameras are not allowed in the US Supreme Court, oral arguments made before the justices have never been seen by most Americans. The most we get to see are courtroom sketches, the familiar drawings produced quickly by sketch artists which are featured on the evening news in lieu of video as an accompaniment to audio clips. Oral arguments are open to the public, but you’d better queue up early if you want to get tickets; there isn’t much room for casual spectators. 

Oral argument in a Supreme Court case kicks off with the solemn entry of the justices into the courtroom at 10:00am on scheduled days, the justices processing from the robing room and appearing at the bench from behind crimson velvet curtains. The justices are collectively announced by the Marshal as they enter the chamber and all present rise as the gavel drops. Next, the familiar cry of “Oyez! Oyez! Oyez!” is heard as the Marshal admonishes all in attendance to “draw near and give their attention, for the Court is now sitting.” 

Counsel for the petitioner is then invited by the Chief Justice to open, which he does, from the central podium, with the words “Mr. Chief Justice, and may it please the Court…” Before he is able to get very far at all in his statement, counsel will be interrupted by one of the justices with a question, and then another, and another, and so on. If this seems rude, bear in mind that the justices have all read the briefs in advance and are already familiar with all the points which have been made by both sides. Having absorbed those briefs, the justices come to the courtroom armed with dozens of questions about what they’ve read, and they’re looking for answers, now, to those questions, not a rehash of the briefs or a lot of lawyerly pontificating. They want to go to lunch like everybody else. 

Counsel for the petitioner is allowed a half hour to present his case orally and to respond to the justices’ questions before counsel for the respondent is called forward to do the same. 

When the Solicitor General is present to argue for the government, the court is in for a treat because he is expected to dress up in formal morning attire for the occasion. It used to be so that all counsel arguing before the Supreme Court were required to wear a black cutaway coat, grey waistcoat, and striped trousers but today that high dress code only applies to the Solicitor General. The Solicitor General has his own flag, incidentally; it is identical to that of his boss, the Attorney General, but colored scarlet instead of blue. 

If counsel for the petitioner has reserved time for rebuttal (he has), he will get to have the last word as well as the first. Having heard counsel’s rebuttal, oral argument concludes, and the judges withdraw as all rise once again. The mass is ended; go in peace. 

Justice Breyer, whom we have been following around, likes to ask a lot of questions during oral argument and enjoys backing counsel into a corner to see how counsel will escape, but having heard all sides, he is now fairly satisfied that he has landed on the side of the petitioner as opposed to that of the respondent. He has not, furthermore, been dazzled by the sight of the Solicitor General in his cutaway coat and striped trousers, nor does he care that the Solicitor General flies his own flag, and he clearly is not impressed by the government’s arguments in this particular case. 


Twice weekly, when the Supreme Court is in session, the justices gather in the Conference Room to confer about the cases they have read and heard. Following a custom which only dates back to the Rehnquist Court, each justice is given the opportunity, in order of seniority, to make a statement about the case in question (before Rehnquist came along, a free-for-all discussion commenced at once, with some justices never getting a word in edgewise). Once each justice has had a turn to speak, the Chief Justice calls for a vote, and once a majority emerges one way or the other, the Chief Justice will assign one of the justices in the majority the task of writing the opinion of the court (or he may elect to write it himself if he is in the majority). 

A lot of pressure now falls upon that justice to craft an opinion in such a way as to not only maintain the majority, but to increase it, if possible. Quite a bit of politicking and negotiating is going on between the justices at this stage of the game, and the writer of the court’s majority opinion must often refrain from saying everything he or she might want to say in the opinion, so as to avoid alienating other justices in the majority (or potentially in the majority). 

It does happen, however, that once the majority opinion is drafted and presented, a judge voting with the majority will reject certain parts of it. That judge, then, while agreeing with the essential ruling of the court in the case, will, rather than sign on to the majority opinion, issue his own opinion, called a “concurrence.” 

On the other side of the majority ruling will be the minority, of course, and the minority will also be issuing an opinion, known as the “dissent”. The dissenting justices may either unite to issue a single, unified dissent or they may dissent individually, issuing their own opinions. 

Unlike the justice assigned to craft the court’s opinion, dissenting justices are not hampered by the need to be diplomatic when crafting their opinions and are at liberty, therefore, to be as strong and strident as they wish to be in their dissents. A dissenting opinion will normally conclude with the phrase, “I respectfully dissent.” Sometimes, however, when a dissenting justice is particularly enraged by the majority decision, he or she will omit the word “respectfully”. 

It may surprise you to learn that most of the cases decided by the US Supreme Court are decided unanimously. Those are the many, many relatively mundane cases you never read about in the papers. It's only the contentious and divisive landmark cases which get the media's attention and that of the general public.

In any event, once the court’s majority opinion and any and all concurrences or dissents are ready, the Supreme Court will then issue its ruling in open court. The Reporter will then draft a syllabus of the case and publish it, along with the ruling and the opinions, to the court’s official roll, United States Reports

Until a case comes before the Grand Ducal Court, we will not know how matters will be organized in terms of Westarctica, particularly as our high court is also our only court. I have to assume, however, that a similar process will be adopted when the time comes to hear appeals or other cases concerning questions of law and constitutionality. 

In Westarctica’s case, for the time being, it is more likely that the Grand Ducal Court will be prevailed upon to respond to reference questions, which this blog touched upon briefly in its inaugural piece. The GDC has, in fact, since the publication of our first article, ruled on a reference submitted by the Prime Minister. 

Reference questions (also called “reference cases”) are questions of law not arising from traditional legal disputes between parties. These questions are put to the court by the government or even by the legislature, typically to determine the constitutional viability of existing laws or of proposed bills or statutes, or even to get clarity on whether a matter falls under the jurisdiction of the national government as opposed to a regional government. 

Although this tradition is unknown in the United States, ruling on reference cases has, by virtue of the Supreme Court Act, been one of the prerogatives of the Supreme Court of Canada since the court was created by Parliament in 1875. 

To take a closer look at reference questions, therefore, we must leave DC and head north, specifically to Ottawa, Ontario. 

If Canada is similar to the United States in many ways, it is also true that the Canadian capital of Ottawa is not like Washington, DC at all. The architecture is markedly different, for one thing. Then there's the size of the place. Despite being the capital of one of the largest countries in the world, Ottawa has the look and feel of a small town which has somehow managed to sprout a reasonably interesting collection of imposing government structures, commercial buildings, and hotels, all condensed within a rather compact area. In that sense, Ottawa bears many similarities to a typical American state capital. 

A daily changing of the guard ceremony on Parliament Hill featuring a company of red-coated soldiers in big bearskin hats, and the quarter-hourly Westminster chimes of Parliament’s Peace Tower (which sound nearly identical to the chimes of “Big Ben”) remind visitors that they are, nevertheless, standing in one of the capitals of the former British Empire. 

Another thing which, in Ottawa, reminds you of Canada's ties to Great Britain is the look and feel of Canada's high court, at least in terms of the way judges and lawyers dress in court. Whereas counsel appearing in American courts (the Supreme Court included) wear everyday business attire, Canadian lawyers, when appearing in the higher courts, at least, wear black gowns over formal black court attire with white legal tabs. Unlike their British counterparts, however, Canadian judges and barristers do not wear wigs. 

The Supreme Court of Canada has, since, 1946, deliberated in a formidable granite building with a steep chateau-style roof, just down the street from Parliament Hill. I had the opportunity to visit the Supreme Court of Canada some years ago and was struck by how small the courtroom is relative to the building in which it is located. After being awed by the massive lobby, tourists are funneled into a rather slim and shallow sunken corridor, at the end of which is a door that opens to reveal a handsome art deco courtroom which looks no larger than your hometown’s traffic court (photographs make it seem much larger than it really is).  

There, in that small, paneled, red carpeted courtroom, oral submissions are heard by the justices on reference questions just as they are for actual cases between parties. In fact, everything with respect to a reference question plays out just like a regular case. 

Petition to be heard is requested by the Governor General-in-Council (formally…in reality by the elected government) and is granted by the court. The government files its brief (called a "factum" in Canada), presenting its question to the court and offering its arguments as to why the government believes the question should be decided one way or another. Counsel representing affected parties against the government’s position (“interveners”) and amici also file briefs. Oral arguments are then heard, the court votes, and a ruling is handed down along with the opinion of the court and any dissenting opinions or concurrences. 

Sound familiar? 

It wasn’t always this way with reference questions, however. In the early days, the court would simply review references as presented in writing by the government and might then issue a decision while offering no explanation as to how it had reached its conclusion, leaving the government in the dark as to the constitutional “whys” and “wherefores”. Nobody else, furthermore, was invited to participate in the process in order to present opposing or concurring points of view to the court; the court heard only from the government. 

COUNSEL FOR THE APPELLANT RESPONDS TO
THE JUSTICES DURING ORAL SUBMISSIONS

By 1891, the Canadian government had determined that the Supreme Court’s habit of handing down unexplained rulings on reference cases was unhelpful and needed to change. In that year, therefore, Parliament amended the Supreme Court Act of 1875 to require the court to accompany its conclusions on references with illuminating explanatory opinions by the justices. The act also permitted the Supreme Court to give notice to interested parties besides the government, enabling them to file factums and be heard in court. 

Apropos of none of the above yet interesting nevertheless is the fact that Canada’s Supreme Court happens to be the only bilingual and bijural court in the world. This is so because Canada has two official languages, French and English, and because the Province of Quebec belongs to the French civil law tradition whereas the rest of Canada operates under the English common law tradition. 

The final point I would like to make about the Supreme Court of Canada is that, unlike the US Supreme Court, cameras are permitted inside. One may, therefore, view oral arguments on television or via video recording. You can find oral submissions before the Canadian Supreme Court on YouTube, as a matter of fact. 

I recommend viewing at least one Canadian Supreme Court hearing, if for no other reason than to experience the sumptuously quiet, mesmerizing elegance of the court's deliberations. If you enjoy watching and listening to ASMR relaxation videos, you haven't seen or heard anything until you've watched oral submissions in Canada's highest court. It isn't necessary to understand what's going on in order to enjoy watching the hearings. 

Note as you view oral submissions that the justices are not wearing their heavy fur-trimmed scarlet robes but instead simple black robes. The formal red robes with white mink hoods and cuffs, mockingly dubbed “Santa Claus suits” (even by the justices themselves, who reportedly despise wearing them) are only worn on formal occasions a handful of times each year.

THE AUTHOR OF THIS BLOG IS THE CURRENT 
CLERK OF THE GRAND DUCAL COURT OF WESTARCTICA

GO WEST!
To learn more about Westarctica visit www.westarctica.info




Saturday, September 19, 2020

IN MEMORIAM: RBG

 

“Real change, enduring change happens one step at a time.

-Ruth Bader Ginsburg

Yesterday, we heard the sad news that U. S. Supreme Court Justice Ruth Bader Ginsburg had lost her battle with pancreatic cancer and had left us at the age of 87 after 27 years of distinguished service on the nation’s highest bench. 

There are numerous political implications involved, here, on account of the vacancy left by Justice Ginsburg’s passing, but we will not be focusing on any of those issues in this blog. 

Plenty is being said about that in the media, understandably, and yet it seems ghoulishly soon. It began almost the moment she passed, as it happens, following a statement by the Senate majority leader to the effect that he intended to ensure she was replaced without delay. I will permit myself only to wonder aloud where common decency has gone in American society, leaving my readers to answer that question for themselves. 

For now, this unanticipated extra edition of “Penumbral Emanations” will honor Justice Ginsburg’s passing in the form of this, my own brief personal tribute. I don’t want to write a biographical sketch or a summation of her fascinating career. Her life and work speak for themselves and you can read about that anywhere. 

What I would rather do is offer a few rather random reflections and observations of my own. 

Earlier this year I watched the 2018 RBG biopic “On the Basis of Sex” starring Felicity Jones as Ruth Bader Ginsburg and Armie Hammer as her beloved husband, Martin Ginsburg, whom she married in 1954. 

She was “Joan Ruth Bader” at that time. Martin Ginsburg, of course, died of cancer in 2010. He had, however, battled cancer much earlier on as a young law student at Harvard, where Ruth was also studying at the time. Martin had to undergo radiation treatment and was not able to attend classes during his illness. 

The film very touchingly portrays Ruth self-sacrificially attending both her own classes and his, taking notes for Martin, reviewing his classes with him at home, and typing up his papers for him, all the while taking care of their three-year-old daughter. 

After watching any historical or biographical film I tend to fact-check it for accuracy and I was pleased to learn that this chapter of their lives together was portrayed quite accurately. 

I was, however, displeased to read that the instances of prejudice and resistance she met both as a woman and as a Jew were more frequent and pronounced than the film had time to portray. The film did not discuss, for example, that Ginsburg had applied to clerk for Supreme Court Justice Felix Frankfurter (more about him in some upcoming edition of this blog, to be sure), but that he rejected her application, outright…on the basis of sex. 

As we know, Ginsburg would have the last laugh, there, with Bill Clinton nominating her in 1993 to replace outgoing Justice Byron White, the Kennedy appointee and star athlete who notably dissented in Roe v. Wade. Ginsburg, who had herself made comments critical of Roe, might never have gotten to the court without the maneuvering of husband Marty, who was determined to boost the wife who had boosted him during his law school days when he battled with cancer. 

Ruth’s name was not at the top of Clinton’s list by any means, buried under a pile of other nominees on the president’s desk. A meeting was finally arranged with Clinton, however. After a 15 minute conversation with RBG, the president was sold. 

Ginsburg would join Arizona Republican Sandra Day O’Connor on the bench as the second woman to sit on the Supreme Court. Although they were from opposite ends of the political spectrum, Ginsburg and O’Connor would tend to have each other’s backs. 

Justice Ginsburg recalled to Supreme Court biographer Joan Biskupic an exchange she once had with O’Connor about the first majority opinion she was assigned to write as a neophyte justice. New justices were typically given easy unanimous opinions as their first assignments, however Chief Justice Bill Rehnquist had dropped a very complicated decision in her lap. “How can he do this to me, Sandra?” she vented. “You just have to do it, Ruth,” O’Connor replied. 

She did, of course, and she would go on to author over 200 majority opinions and a plethora of dissents and concurrences. 

Ginsburg would feel a bit alone on the bench after O’Connor retired in 2006 but would rejoice at the appointment of Sonia Sotomayor in 2009 and again at the appointment of Elena Kagan in 2010. Ginsburg once remarked that she took no small pleasure from watching Justice Kagan going toe-to-toe with Chief Justice Roberts, sparring with him behind the scenes when it came time to drafting opinions. 

Three female justices were, in RBG’s opinion, a good start, but just a start. “When I'm sometimes asked when will there be enough [women on the Supreme Court] and I say, 'When there are nine,' people are shocked,” Ginsburg once famously stated, “But there'd been nine men, and nobody's ever raised a question about that.” 

One of those men was ultra-conservative justice Antonin Scalia whose arrogance both Ginsburg and O’Connor could at times be exasperated by. RBG once commented that there were times she “wanted to strangle him.” In spite of their differences, however, Justices Ginsburg and Scalia quite famously became very good friends and were often seen attending the opera together, dining together, and going on various adventures together. 

In 2014, following a private lunch with President Barack Obama at the White House, speculation arose that President Obama had perhaps asked her to step down to make way for a younger liberal justice. He had not asked her to, Ginsburg revealed, offering that “The President eats very quickly and I eat very slowly.” When asked why Obama had invited her for lunch, if not to ask her to step aside, she speculated that it was simply because the president liked her and wanted to have lunch with her. “I also like him,” she declared. 

Justice Ginsburg was once asked about her ambition to become a Supreme Court justice to which she responded that her first choice would have been to be an opera diva. She loved the opera. 

In court, however, Ruth Ginsburg was anything but a diva. She was quietly exacting in her questions and could be tough from the bench but she was never egocentric or theatrical. Scalia once observed that she could shake a lawyer who made a ridiculous argument before the court “like a dog with a bone.” 

Justice Ginsburg’s love of opera, incidentally, was so persistent that she worked out while listening to it, according to her personal trainer, Bryant Johnson. “When you know opera like she knows it, it gets you going,” Johnson remarked, “It has a beat.” 

RBG didn’t train in her old age simply to stay on the court in the hopes of outlasting the Trump administration, however; her motivation was down-to-earth and practical. “Exercise won’t make you live longer,” she said, “but it will improve your quality of life and enable you to get off the toilet by yourself.” 

Ruth Bader Ginsburg was, in the words of Justice Sotomayor, “a pathbreaking champion of women’s rights,” not only on the high court but throughout her long career as a professor, lawyer, and judge. She was also, of course, a modern American icon…our “Notorious RBG”…and her name will be well-remembered. 

Of all the tributes offered today by Justice Ginsburg’s colleagues, I think the most effusive and the most moving was written by the Supreme Court’s newest and perhaps most controversial justice, Brett Kavanaugh. I was so impressed by it that I am going to reproduce it here in full: 

"No American has ever done more than Justice Ginsburg to ensure equal justice under law for women. She was a cherished colleague, and she inspired me, and all of us, with her unparalleled work ethic and devotion to the law. A meticulous and pathmarking judge, she held herself to the highest standards of precision and accuracy in her beautifully crafted opinions. And she inspired all of us to try to meet those same exacting standards. I learned from her principled voice and marveled at her wonderful wit at our weekly conferences and daily lunches. Justice Ginsburg paved the way for women to become lawyers and judges. She made it possible for women and girls like my daughters to compete on equal footing as student-athletes. When Justice Ginsburg was last in my office earlier this year, I pointed out a photo I keep of her standing with four women who served as law clerks in my chambers in my first term. As long as I am fortunate enough to serve on the Supreme Court, I will keep that photo prominently in my office as a continuing tribute to Justice Ginsburg and as a daily reminder to work hard and pursue equal justice. May God bless Ruth Bader Ginsburg." 

I think it is entirely fitting to close this memorial issue with words of tribute from Westarctica’s own pioneering female jurist, Chief Justice Christine Wood:

“Ruth Bader Ginsburg remains an inspiration, forever a beacon of hope in uncertain times. It is a heavy loss that we are now without this pioneer who fought so ardently to bring about equality and justice. A legend of The Supreme Court of the United States but wholly respected all over the world, her legacy will be cemented in history to inspire those following in her footsteps.”

The Honorable Ruth Bader Ginsburg
1933 - 2020





JUSTICE IN THE SERVICE OF LIBERTY

  DECEMBER 2020 Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it .  –Judge Lea...