Old Books and Old Justices

In my frequent antique store book-hunting excursions, I often seek out old history and law books. The older the better. An old history or law book is like a time machine, zooming a current day reader off to a different world with different social norms, historical assumptions, and methods of thought.

To my delight, I was recently able to find a 1938 copy of professor Jerome Hall's Readings in Jurisprudence law school textbook for just two dollars. In it, along with dozens of well-known essays and articles about legal theory and judicial decision-making, is an excerpt from a 1921 essay by Benjamin Cardozo, at the time a state court judge in New York. Just over ten years later he would become a justice of the United States Supreme Court.

The excerpted article, "The Nature of the Judicial Process," describes Cardozo's multi-faceted approach to judging, an approach that would probably seem far too nuanced and malleable to the far more rigid contemporary schools of statutory and constitutional interpretation. 

Below is the excerpt as it appears in Professor Hall's book:

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking a path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art.

And, as a bonus relic from the past, I found a brief (and positive) review of Professor Hall's book, published in the 1939 volume of the fledgling Louisiana Law Review. The reviewer concludes:

Copy Paste

Plagiarism has been a big news item lately. At the Republican National Convention this past week, Donald Trump's wife Melania gave a speech that included word-for-word passages taken from Michelle Obama's 2008 speech to the Democratic National Convention. That caused a bit of an uproar, mostly among academics, journalists, and Democrats.

Stealing other people's words and passing them off as your own is bad. But stealing from others is not the only form of plagiarism. There is also something called self-plagiarism, where you steal from yourself without attribution. Compared to stealing from others, it's a lesser sin, but still generally frowned upon. Sometimes sternly.

Now, a disclosure. Lawyers are habitual plagiarizers. We recycle documents constantly, using language from past motions written by ourselves and partners to fill out new motions, copy/pasting big chunks of old briefs and filings into new briefs and filings, etc. Firms often keep repositories of past filings that are shared by multiple lawyers. Some lawyers, especially those with lots of clients and heavy workloads dealing with the same legal issues over and over, routinely reuse old documents, sometimes simply replacing one client's name with another. It's not the best way to do things but it saves a ton of time. There are some filings in litigation that are truly routine and rewriting them from scratch is wasteful and simply not necessary.

Is this OK? I've seen it excused on the basis that the lawyer is not claiming whatever it is he or she plagiarized as his or her original work in a public sphere - in other words, there is a difference between court filings and an academic article or a news piece - but that's not really true because court filings are public and lawyers sign their names to everything they file.

But, on the other hand, legal advocacy is not an academic pursuit. You have to write a lot and provide sources, sure, but lawyers use written briefs and motions to point out to the court the legal reasons why their client should win a particular dispute. Legal writing is a tool more than a piece of scholarship. Even a 14,000-word appellate brief is not considered an academic work for which the author is seeking personal recognition. It's a letter to the court asking for them to do something in your favor and giving them reasons why they should.

Judicial opinions, like those written by Supreme Court justices, are a little different in my mind. They're still not academic or journalistic works, but they carry the weight of law and are cited for their authority as legal precedent. They gain power over time, and reflect the author's personal views on how the law should operate and how it should be applied to facts which may reoccur in the future. Judicial opinions contribute to a judge's public reputation. So, in that case, I think plagiarism is a much bigger deal.

What about self-plagiarism in judicial opinions? Well, that's kind of curious. Is a judge ripping himself or herself off in an opinion without attribution as big a deal as stealing from another judge without attribution? Probably not. But is it still kind of dubious? Probably.

Until recently, I had never noticed an incident of judicial self-plagiarism. But in my preparation to teach an upcoming class on constitutional rights, I noticed an interesting little historical reference used twice by the late Chief Justice William Rehnquist.

In 1985, the Supreme Court decided the case of Wallace v. Jaffree. Jaffree was a lawyer and the father of three children attending public schools in Mobile, Alabama. At school, his children were required by state law to observe "a period of silence, not to exceed one minute in duration...for meditation or voluntary prayer." Jaffree sued the school district, arguing that the purposeful inclusion of "voluntary prayer" by the Alabama legislature violated the Establishment Clause of the First Amendment.

The Supreme Court agreed with Jaffree, and struck down the law. In dissent, then-just-Justice Rehnquist (he would become Chief the next year) wrote a solo dissent criticizing the Court's interpretation of the Establishment Clause. The Court interpreted it to require strict religious neutrality on the part of the government. Rehnquist argued that the prominent role of religion in the history of American government belied this claim. To bolster his argument, Rehnquist referred to a person you may have heard of:

George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

472 US 38, 113. I didn't omit any citation. Rehnquist didn't cite any source for this quote. But that's not the rub.

The rub comes fifteen years later, in a case called Santa Fe Independent School District v. Doe. In the late 1990s, Santa Fe High School in Texas started every football game with a student-led prayer or invocation. A group of students and their parents sued the school district, arguing that the pre-game religious ritual violated the Establishment Clause.

Like in Jaffree, the Supreme Court agreed, striking down the school's prayer scheme. Justice John Paul Stevens wrote the majority opinion (just like he had in Jaffree). And once again, now-Chief-Justice Rehnquist dissented. The fact that he dissented wasn't the only thing familiar about the case. This passage from his opinion in Santa Fe may also seem familiar:

...when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

530 U.S. 290, 318.

Rehnquist used the exact same sentence about George Washington in his Santa Fe dissent that he had previously used in his dissent to Jaffree. The only difference in Santa Fe was that he included a historical source for the Washington quote ("Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).").

Rehnquist did not, however, note the fact that he had already written this same passage in Jaffree. Normally when Justices quote themselves, they cite to the original opinion (even if it was a dissent and not the majority holding). It is somewhat odd that Rehnquist didn't do that in Santa Fe considering he was trying to make the exact same point he made in dissent to Jaffree.

Is this a big deal? Probably not. Chief Justice Rehnquist was no Melania Trump. But it is interesting to see that the phenomenon of plagiarism pops up even in the hallowed halls of the United States Supreme Court from time to time.

Primary Colors

I'll be teaching a class on constitutional rights at Bellarmine University this fall. While preparing, and as we all struggle to survive what seems like a never-ending primary election season, a line of Supreme Court cases dealing with primary election discrimination grabbed my attention.

In the 1920s, Texas passed a law explicitly prohibiting African Americans from participating in Democratic party primary elections:

[I]n no event shall a negro be eligible to participate in a Democratic primary election held in the State of Texas.

At the time, the Democrats totally dominated Texas politics and the primaries were often more important than the general elections because Republicans (still then the "party of Lincoln") had no chance. The Ku Klux Klan had also grown very powerful in the state, so much so that an avowed knight of the order, Earl Mayfield, won the Democratic primary for U.S. senate in 1922 (and then defeated another Democrat who switched parties for the general election).

Excluding black voters from the Democratic primaries essentially negated their right to vote in any meaningful way, and even though they were still able to vote in the general election, the Texas law was a blatant violation of the Fifteenth Amendment (which explicitly prohibits racial discrimination in voting). Not only that, but it also violated the Fourteenth Amendment, which requires equal protection under the law.

In a case called Nixon v. Herndon, Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court in 1927, said of the Texas law:

We find it unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth… The statute of Texas…assumes to forbid negroes to take part in a primary election…, discriminating against them by the distinction of color alone. States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.

The Supreme Court ruled clearly: an explicit legislative exclusion of African Americans from the primary process was unconstitutional. So Texas, still dominated by racist Democrats and the Klan, tried again. A new law was passed the same year as the Herndon decision stating that "every political party...shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote..." (Article 3110, Revised Civil Statutes of Texas).

With this legislative hall pass in hand, the Democratic Party of Texas updated their membership rules in 1928:

Be it resolved that all white democrats who are qualified under the Constitution and laws of Texas and who subscribe to the statutory pledge provided in Article 3110, Revised Civil Statutes of Texas, and none other, be allowed to participate in the primary elections.

The new rule excluded blacks from being members of the Democratic party, and thus excluded them from participating in the Democratic primaries (which were closed to non-members), and thus excluded them from effectively participating in the electoral politics of their state.

Another lawsuit followed, and once again, it reached the Supreme Court, this time as Nixon v. Condon in 1932. In a 5-4 majority opinion, Justice Benjamin Cardozo (joined by Hughes, Brandeis, Stone, and Roberts) rejected this new discrimination-through-proxy scheme and struck it down:

The test is not whether the members of the [Democratic Party] Executive Committee are the representatives of the State in the strict sense…. The test is whether they are to be classified as representatives of the State to such an extent and in such a sense that the great restraints of the Constitution set limits to their action. [This] case is seen to be ruled by Nixon v. Herndon. Delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. The Fourteenth Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color.

As "delegates of the State's power," the Democratic Party's actions brought it within the prohibitions of the constitution. Such delegation was not particularly hidden, either, because the nefarious party resolution actually cited the enabling Texas statute.

Undeterred by two straight losses, the Texas Democrats took a different, more clever tack. At the party convention of 1932, they issued a new resolution which omitted any language specifically excluding blacks from the party and any reference to Texas state law:

Be it resolved that all white citizens of Texas who are qualified to vote under the Constitution and laws of the state shall be eligible to membership in the Democratic party and as such entitled to participate in its deliberations.

Despite the change in language, the effect was the same. Black voters couldn't be Democrats or vote in the Democratic primary, which was still the only meaningful electoral contest in Texas.

A third lawsuit against this "white primary" rule reached the Supreme Court as Grovey v. Townsend. But though the composition of the Court was identical to that which decided Condon, the challengers fared far worse. This time a unanimous Court ruled against black voters and in favor of the Texas Democrats.

Why? Because now the Court found no state action involved, either direct or through delegation of power. Political parties are private entities. As private entities, they can make their own rules. According to Justice Owen Roberts, writing for the Court:

The legislative assembly of the state…has never attempted to prescribe or to limit the membership of a political party, and it is now settled that it has no power so to do… We are not prepared to hold that, in Texas, the state convention of a party has become a mere instrumentality or agency for expressing the voice or will of the state… The argument is that, as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether. So to say is to confuse the privilege of membership in a party with the right to vote for one who is to hold a public office. With the former, the state need have no concern…

The Democratic Party was allowed to make its own rules and as long as Texas wasn't compelling them or enabling them to discriminate, the Court viewed itself as powerless to intervene.

African Americans could now effectively be excluded from the political process in Texas despite the Fifteenth Amendment.

But years later, in a case arising in a different state with a very different set of facts, the constitutional climate changed. In 1940, Louisiana election officials were charged with a federal crime for altering and miscounting ballots in a Democratic primary election. The indictments could only be upheld if the primary election was considered to implicate a right "secured by the Constitution."

Louisiana was much like Texas in that the Democratic party was so dominant that the only meaningful elections were Democratic primaries. As such, an official's interference with that process interfered with voters' constitutional right to vote. Writing for the Court in United States v. Classic, Justice Harlan Stone explained:

Unless the constitutional protection of the integrity of ‘elections’ extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection…
[A] primary election which involves a necessary step in the choice of candidates for election…, and which…controls that choice, is an election within the meaning of the constitutional provision...

And thus the landscape had shifted, and a new challenge to the Texas party rule was possible. Like in Louisiana, the Democrats controlled Texas so totally that their primary elections were de facto general elections. Though United States v. Classic involved no racial discrimination, the case became a weapon against the exclusion of black voters.

A fourth challenge to the Democrats' scheme was launched and reached the Supreme Court as Smith v. Allwright in 1944. The 1932 party resolution attacked in Grovey was still in effect, but this time it did not survive.

Justice Stanley Reed delivered the near-unanimous opinion of the Court:

This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.

States are prohibited by the Fourteenth and Fifteenth Amendments from discriminating by race, so, as a state action, the racist Democratic Party resolution was unconstitutional.

Finally, after more than twenty years, the Texas "white primary," and all explicitly racial primary election exclusions like it, was struck down. Of course, other, more oblique schemes (like the literacy test) would survive until the Voting Rights Act was passed in 1965, but a significant hurdle to full electoral participation by African Americans had finally fallen.

I Have No Opinion

The Supreme Court recently decided the case of Franchise Tax Board of California v. Hyatt, a fairly interesting case in which a citizen of Nevada brought a lawsuit against a California government entity in a Nevada court. The factual details are not especially important to this post. What matters is how the justices voted to decide the case.

There were two questions. The first, whether an older case called Nevada v. Hall should be overruled, could not be definitively answered because the eight members of the Court tied in their vote. The second, whether the Nevada court applied the correct law when deciding the case, was answered in the negative by six of the eight. Of those six, Justice Samuel Alito merely concurred in the result but did not join the controlling opinion written by Justice Stephen Breyer.

Alito's concurrence is interesting because of its brevity.

When a justice "concurs in the judgment," they agree with the ultimate holding of the case (the end result) but disagree with the reasoning of the majority opinion. Normally, such a concurrence is accompanied by an opinion of its own, explaining exactly why the concurring justice agrees with the holding but departs from his or her colleagues on their approach.

Justice Alito's concurrence in Hyatt has no accompanying opinion. He agreed with the result of the case, disagreed with the majority's reasoning, but was for some reason disinclined to explain why.

Though this is now rare, it is not without precedent. This practice was actually quite prevalent during the reign of Chief Justice Roger Taney between 1836 and 1864, but has declined dramatically since. That said, Justice Alito himself concurred without an opinion in another case just three years ago: Los Angeles County Flood Control District v. Natural Resource Defense Council, Inc. Other examples of silent dissents and concurrences can be found here

Note that Justice Alito did not do anything wrong in Hyatt. There is no rule requiring Supreme Court justices to write a separate opinion if they concur or dissent in a case. But it is noteworthy when they do not, because they are so rarely reluctant to expound their positions elaborately whenever the opportunity arises.