Liptak on Ginsburg

Adam Liptak had a couple of articles this weekend discussing arguments made by Ruth Bader Ginsburg. The first refers to Ginsburg’s oft-cited (at least by opponents and centrist critics of Roe) claim that Roe went too far too fast. I wish Liptak had been a little less credulous about it, though, because (while I admire Justice Ginsburg) her argument there is exceptionally weak. Among other problems, her central arguments require assuming that 1)immediately striking down 37 state abortion statutes wouldn’t have created a substantial backlash as long as the Supreme Court didn’t specify precisely what marginal regulations of abortion would be permissible in the future and 2)the reactionary minority that opposed the decision would have accepted a decision reached on gender equality rather than due process grounds, even though most of them actually also oppose the Court’s gender equality jurisprudence. To call these assumptions “implausible” is charitable.

The second article showcases a much better argument. As Publius says, the debate over references to international legal sources in Supreme Court opinions is a debate about nothing. For those of you with LEXIS, Mark Tushnet makes the case in more detail in a couple of 2006 articles (“When Is Knowing Less Better Than Knowing More…”, “Referring to Foreign Law In Constitutional Interpretation….”). As Publius and Tushnet note, this debate is trivial in legal terms and is interesting only as an artifact of the culture wars. Tushnet’s bottom line:

My general conclusions are these: the criticisms are either irrelevant, not distinctive to the use of non-U.S. law, or seriously overstated. The structure of the irrelevance claim is simple: the validity of the criticism is entirely parasitic on some other argument – which is merely asserted, not defended – in the course of criticizing the references to non-U.S. law. The irrelevant criticisms apply other criticisms – deployed in a wide range of contexts, not just this one – of various judicial practices. The criticisms of references to non-U.S. law, that is, stand or fall with the validity of those other criticisms, and have little or no independent force. The structure of the nondistinctive–ness argument is a bit more complex. These “nondistinctive” criticisms are applicable to a much wider range of practices than reference to non-U.S. law, but critics do not explain why they have taken as their target the practice of referring to non-U.S. law. One reason might be that the practice is at present relatively unimportant and can be stifled before it becomes an important one. That is, the target is not the actual practice of referring to non-U.S. law but to some imagined practice that might develop out of the present one. Yet critics have provided no reasons why that development – which would involve the transformation of a practice that is defensible on its own terms into an indefensible one – will occur.

I have tried to support what Professor Kenneth Anderson calls “Justice Breyer’s “no big deal’ view.” The references to non-U.S. law are few and nonthreatening, and the reaction to those references has been far out of proportion to their importance. Yet, one implication of the “no big deal” thesis is that it is no big deal one way or the other. We would not lose much were U.S. judges to conclude that the game of referring to non-U.S. law was not worth the candle. [Cites omitted]

I agree with pretty much all of this. Criticism of this unimportant practice require erecting strawmen (such as Roberts’s discussion at his confirmation hearings about whether foreign law could be cited “as precedent”), and the idea that these footnotes have any causal force — as if Kennedy would reach different holdings without the cites — is bizarre. On the other hand, it is a trivial practice both ways, and I agree with Tushnet that the best argument you can make against it is that it’s not clear what value these cites have other than tweaking the other side, to make them defend the proposition that “knowing less is better than knowing more.” On a Court where Antonin Scalia is often considered the intellectual leader of the conservative faction, though, I can’t say I’m going to lose any sleep over it.