There's a lot of blawg and op ed commentary right now about why conservative justices aren't reliable, the way liberal ones are. . .

in terms of their sticking to the ideological side of their supposed camp.

We've discussed this before, so this is an instance where we're ahead of the debate curve.  The answer to it, at any rate, is fairly simple.

There aren't any "conservative" justices in terms of philosophy.

Okay, that's an exaggeration, but there are very few reliably conservative justices in terms of philosophy.  Justice Thomas may be about it.

The reason that this surprises people is that political conservatism and philosophical conservative are confused all the time and, like any set of philosophies, even political conservatism is really more than one stream of thought.

At any rate, judicial conservatism would require a fundamental, even metaphysical, concept of the law.  This was in fact at one time common in the law and on the courts.  Even as late as the 1970s some justices would cite metaphysical concepts in a decisions.

That doesn't happen anymore.

Starting with perhaps the failed confirmation hearing for Robert Bork, what we started to get instead was "strict constructionist" and "textualist".  These justices may be politically conservative in general and even somewhat judicially conservative, but at the the end of the day they are not concerned with metaphysics and the law.  There's no "is there a Law greater than our law" type of analysis as you can find, for example, in The Antelope.  These topics aren't debated.

In contrast, liberal justices tend to seamlessly blend their metaphysical concepts with their opinions.  It's even fairly open most of the time.

Hence we have two interesting examples, on totally different topics, over the past decade.  This past term the Supreme Court ruled, 5 to 4, in McGirt v. Oklahoma that about half of Oklahoma lies in a reservation and therefore the state of Oklahoma cannot prosecute crimes against Indians in that part of Oklahoma.  How this plays out is not yet known but those who are inclined to wish not to be too concerned simply assume that the holding is limited.  In my view, it isn't.  It's fully expansive and it'll take a couple of decades and at least one more visit to the Supreme Court to work this out.

Now, it's easy to see how the liberal justices would vote in this fashion, but Gorsuch was the swing vote and author of the opinion.  How could he?  Easily enough, Gorsuch, as his prior decisions have already demonstrated, ia s pure textualist.  He reads and applies the text, and doesn't worry about much else.

Now, in fairness, there isn't a set of greater metaphysical questions immediately presented by this case. . . although there are some.  One would be whether a separate set of laws pertaining to Indian residents of a state alone is really just.  I.e., is this a type of legal apartheid in the United States, and if it is, should it be maintained?  Is it even moral to do so?  In this context, few realize that the Bill of Rights doesn't apply to Indians on reservations.  Shouldn't it?

In contrast we have Obergefell from a couple of years ago.  In that case Anthony Kennedy, the swing vote at the time, authored the opinion in what was clearly a results oriented opinion.  It's impossible to read the case without coming to the conclusion that the liberal opinion was designed to create a state of law which was what its authors thought should be the law, rather than basing the opinion on any actual law at all.

And this breaks down the two basic judicial philosophies on the Court.  One holds that we read and apply what is there, informed by what we know about the original authors.  It's conservative, but not in a metaphysical, what about Natural Law, sense.  The other holds that we look at the law and apply it the way that progressive minds would have the law read.  It's into metaphysics, but only shallowly.

The Big Top

Today will be Brett Kavanaugh's first day as a sitting justice on the United States Supreme Court.

Robert Bork in 2005.  Bork's nomination by Ronald Reagan, and its defeat at the hands of Joe Biden, gave us the modern Supreme Court era.  Bork was a University of Chicago educated lawyer who quit a law practice to the shock of his partners to become a law professor and then went on to become U.S. Solicitor and a Federal Court Judge.  At the time of his leaving private practice his close friends noted that he stated he didn't want to leave a legacy of "depositions, briefs and money".  He would leave a real legacy, but it was no doubt not the one in some ways that he hoped to leave.

I had predicted that the Kavanaugh nomination would be a circus.  I just didn't realize the extent to which my prediction would prove true.

It's been absolutely crazy. Even shameful.

We still don't really know what happened on that night back in the early 1980s at a high school party or that evening at an alleged college party.   We are never going to know, probably.  It's actually perfectly possible that every single person involved is telling the truth.  If the show surrounding the nomination provided any service to the nation in a larger societal sense, it might be in exposing the moral decline that had set in by the late 1970s and early 1980s from which we are now thankfully rapidly retreating, even if we fear on actually re-adopting the standards that a full retreat would require.  I can believe that Dr. Ford went to a high school drinking party in an innocent naive fashion three decades ago and was the victim of a violent groping assault that scared her, and I can believe that boys at that party through that they had the license to do that and it would just be good fun (I'm less willing to believe that their motivation was actual rape).  I can also believe that at a college party at Yale Mrs. Ramirez, after having drunk too much, was the victim of an indecent exposure by a male student and that likewise that student didn't think it assault but license.  I can also believe that Kavanaugh was a male participant in all of that.

At the same time, however, I can also believe that the long passage of time and the vagaries of memory could have messed with the accuracy of all of those recollections.  Peoples memories fail and become altered.  Either a lot of memory failure is operating here in this case, or somebody is lying.  We're not going to ever know what the situation is.

That is, I suppose the nature of recalling, but the bigger problem here is that it is now perfectly clear, if it wasn't before, that the political left has reached such a state of contempt for large sections of the voting public that it will go to nearly any extreme to prevent the electorate from voting on certain issues.  The left feels more comfortable with a type of judicial dictatorship than it does with democracy. That is, at the end of the day, which much of this is about.  The left fears that a conservative tilt to the Supreme Court will mean that the court will review decisions in which it also feels that there is little Constitutional support for the holdings and reverse them, sending the questions back to the states, where it fears it will loose.  Posed in terms of "right", it's a contest between whether a judicially constructed thin construction of rights should trump the rights of the electorate. That's a dangerous place to be as it could just as easily flip.  The left should perhaps stop and consider what it would mean if really conservative justices accepting a theory of natural law took the same approach as liberal judges have in the past and imposed a new set of rights and duties based on that analysis.

Much of this simply didn't seem to come up.  There wasn't a heated debate on "strict construction" as opposed to "living documents" or the like, which would have been instructive.  The arguments just devolved to theater, with those opposed to Kavanaugh largely acting as if he was a fascist there to seize rights rather than perhaps a jurist who might operate in combine to return questions to the states.

That's bad enough, but we've been seeing things like that every since Robert Bork's nomination went down in a debate that at least did discuss real issues and theories.  His mistake, of course, was in honestly answering the questions posed to him.  Now nobody makes that mistake, which is part of the reason we have the circus we do. We can thank Joe Biden, who lead the charge against Bork, for that.

But beyond that what is also now apparent is that there are certain elements on the left who feel that any effort is justified to prevent a conservative justice from being seated.  That effort is quixotic but scary.  That group doesn't feel that lying to keep a judge off the bench is wrong, but rather laudable.

I'm not saying that either Ford or Ramirez fit that mold.  But I am saying that those who fit into that camp are pretty happy to use and emphasize memories that they have that may or may not be faulty.  Both Ford and Ramirez did not wish to come forward but were forced by the times, or in Ford's case by unwanted disclosure in a questionable manner, to do just that.

This is a new development.  When Bork was taken down so many years ago, it was pretty openly due to his views, which actually were novel at the time, following a long Supreme Court departure from originalism.  Agree with the views held by Biden or Bork, at least it was views that were in contest.  Following that we had the entire saga surrounding Justice Thomas an Anita Hill, which is still one in which we don't know what happened a person's views tend to follow their political beliefs, but this takes the entire drama one step higher and indeed further than what seemed to be a new accommodation which was similar to the old one which was outside of pure political advantage (a factor that was always there in spite of what people claim), qualified justices would be approved.  Now it's pretty clear that qualified conservative justices will be uniformly contested on any grounds, real, suspected, or constructed, and we can presume the same will be the case for liberal justices as well.

This next act of the circus seems to have come about largely due to Trump's election, which the left has an absolutely over the top reaction to.  Readers here will recall that I was never a Trump fan and was surprised by his nomination and his election.  But the "resistance" attitude to a legitimately elected President is scary.  Not that even this is wholly new, in spite of what people claim.  That sort of view seems to have dated back to Barrack Obama's first election at which point a certain percentage of the political right took an absolutely over the top view of his election, and maintained all sorts of absurd claims regarding it.  As a result of this, we're now into the tenth year of an escalating and ever more extreme resistance to the occupier of the White House in a fashion which we have not seen since the Civil War.  It's a bleak situation to be sure.

And therefore it's probably naturally that its finally spilled full scale over to the Federal judiciary.  One can only hope that at some point this sort of behavior stops, but there's no end in sight anywhere.  All of which takes us back to Kavanaugh.

Now that Kavanaugh has been confirmed can we say he should have been?  Based on what we know, I would have voted to confirm.  I don't think he was the ideal choice, and I do think his views on executive privilege are really troubling.  Those alone would have caused me to question passing him, but they're not sufficiently dominating that I think a person can legitimately get to a no.

Added to that, and no doubt plain from my earlier writings I"m really tired of Ivy League appointees to the Supreme Court and that would have influenced me a little.  I refuse to believe that the only ones who are qualified to occupy the highest courts are those who came out of Harvard, Yale, etc. That can't be true, and that view is serving to further convert the Supreme Court into a Platonic Council of Elders, which is not what the Supreme Court should be.  It also serves to elevate the law schools of those sch

And the claims of moral turpitude?  Well, what with the Me Too movement blooming into full flower and then being taken over, i.e., having gone from legitimate exposures of sexual misconduct to lewd conduct or even the suggestion of lewd conduct, we've entered an era when any figure, usually a male, can seemingly have his career wrecked by a mere allegation.  Did Senator Al Franken deserve his downfall for acting like a lout?  Should people whose careers are well advanced see them go down by allegation alone.

At least in Kavanaugh's case, it would appear that the answer would be no, but there were those who seriously argued for that and who are very much offended.  Indeed, Kavanaugh's words in his resumed confirmation hearing when he made an observation about "what comes around goes around" were taken boldly out of context by those who, if they'd read them, should have known that they were misrepresenting what he said.

So where should all of this lead us?

Well, for one thing perhaps there needs to be some sort of consensus that times change and people do as well.  Bringing up crimes that can be proven are one thing, but perhaps a societal statute of limitations needs to exist on allegations of old past misconduct that are truly old.  That is, perhaps people shouldn't be deemed to be presently condemned for allegations or past misbehavior from decades ago if there's no suggestion, and here there wasn't, that such conduct pressed forward to the current day.  Nobody ever maintained such a thing here, and all the argument was on what happened decades ago.

Likewise, perhaps its okay to acknowledge, as some are in fact doing, that the standards of the late 60s, 70s, and early 80s that applied to the young were debased.  If we do, we have to look at where that took us and what it means for us today, and we don't seem to want to do that.  But if we're going to condemn people for acting in a manner that was actually celebrated at the time in film (and yesterday's example of Animal House is hardly the only one that could be given), maybe we better see where that same movement took us and where we're acting on it today.  We always consider our present standards to be prefect, but they rarely are, and linear time is always impacted by what came before it.

Finally, while everyone has been saying it, at some point the dysfunction in the nation's politics has got to cease.  There is seemingly no end in sight, and the Democrats are focused on the election next month with the hope that they'll take the Senate and maybe the House and then the resistance will be able to set in.  In other words, there seems to be no hope for a return to any sort of normalcy for the rest of this Presidential term, which unfortunately means that much of the nation will continue to be unwilling circus viewers while those enjoying it, and there are many, on the right and the left continue the show.

The Natural Law

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Declaration of Independence, which specifically cited Natural Law as a basis for declaring the colonies to be independent from the United Kingdom.

One of the things that has become pretty evident due to the Obegefell decision, but which was really evident before (this draft started about a month ago, before the recent Supreme Court decisions came out) is how anemic American legal education and thinking has become.  Law Schools are pretty much trade schools nowadays, and they're producing technicians.  I suppose that's why law schools are generally enthusiastic about the UBE, as a school that educated machinists or mechanics, fine occupations I'd note, would want their graduates to have "transportable" degrees.  The law is pretty much viewed that way as a profession now.  Not a "learned profession", as it once was, but a technical skill without a philosophic origin or inclination.

But law is supposed to be different.  The degree purports to be a "doctorate" after all, and the old theory was that lawyers were educated not only in the law, but also in the philosophy and theory of law.  Oh, most or at least a lot of, law schools probably have a class on jurisprudence (UW did not when I was there), but as jurisprudence doesn't make it to the UBE, I doubt very many people take it.  It's really a gaping hole in our legal education.

In contrast, there was a time when lawyers actually pondered such things.  Justice Bloom, a long ago Wyoming Supreme Court justice, left his diaries to UW and they're filled with his pondering on Roman Law.  Now, I'm not advocating adopting the Code Justinian (the Corpus Juris Civilis), but I am advocating knowing the history and origin of law, and its theories.  If a person doesn't understand the concept of Roman Law, the concept of Common Law, and their origins, they ought to, assuming they are lawyers, and particularly if they are judges.

And I'm also advocating that lawyers at a bare minimum be taught and required to learn, and understand, the theory of law.  If they don't, then there is really no law at all. And right now, that pretty much seems to be the case.  Recent opinions by the United States Supreme Court are disappointing in these regards, and seem to suggest that the Court has no concept of the law beyond vague grasping of trying to do, what it thinks is the right thing, or the next thing, or what people would want to do if they knew what they should want.

So, I think they should learn about Natural Law.

Natural Law is an ancient concept, and frankly probably goes back as far as man.  In writings, however, we can see it referred to at least as early as Plato, and we also see it at work amongst the Romans.  It's famously associated with St. Thomas Aquinas, but contrary to what some sneering commenters, who hold a "progressive" authoritarian concept of the law, it vastly predates him as a concept.

There are entire treatises on Natural Law, and this isn't intended to be one, but the basic concept is simple enough. We observe, by merely existing, that there is a nature and that nature has a natural order.  That natural order is the Natural Law.  Things sometimes within that order depart from it, but those exceptions, unless widespread enough to constitute part of nature themselves, do not redefine it. Indeed, as this is a legal concept, we accept that there things which are disordered as they depart from the Natural Law.

This applies to the affairs of man in the context of observed behavior.  All men, in all societies, everywhere, have a concept that unrestricted homicide is wrong.  They also all have the concept that homicide in defense of themselves or their family (tribe) is not.  All have a concept of property ownership, and that taking a person's property is generally wrong, but all also have a concept that certain property belongs to nobody, or rather everybody.  All societies have a concept of a male/female union that's inviolate under normal circumstances, and which trespassing upon can result in severe consequences. 

This isn't all, by any means, but it provides a common assortment. Whether a person is a cafe crawler in France, or a jungle dweller in the Philippines, this basic set of laws is recognized.  Where not written into the law, it's strongly written into social custom to the point of being the law.  Indeed, from time to time here I've mentioned "the old law", which is an aspect of this.

The origin of the Natural Law, in modern times, has been what has upset social liberals and caused the Natural Law to be forgotten.  In Thomistic Theology, or theology in general, the Natural Law is divine in origin and inscribed on the hearts of every human being.  The signors of the Declaration of Independence, and the drafters of the Constitution, understood it in that context, although loosely as they were not all of the same religion, and living during the Enlightenment, as they did, some were not Christians at all. Starting with Karl Marx and Frederic Engels, social liberals have been at war with that concept and have, indeed, sanctioned huge departures from the Natural Law.  But that's confusing the thesis.  Philosophers who predated St. Thomas, and indeed who predated Christ, wrote on the Natural Law, and indeed there really isn't any ancient philosophy anywhere that didn't recognize it.  A principal difference, in fact, of European philosophy and Oriental philosophy is that Europeans held that the Natural Law could be observed, and hence discerned, while Orientals held that the Natural Law could be observed, and need not be further discerned.

Natural Law was universally understood to exist and form a citable form of law by the early philosophers, and perhaps more importantly for our discussion here, the Courts and lawyers of the United States early in its history.  Frequent citation to the Natural Law can be found in the briefs submitted for argument in front of the United States Supreme Court in the 19th Century and there was no real effort to describe what it was, as it was widely understood to both exist and have a common meaning.

Citations to natural law at that point in time cited three types as clearly existing, only one of which tends to be still cited by the Court now, that being physical laws (as in water flows down hill).  The Courts, outside of physical laws, spoke frequently of "the natural law of nations" and "natural law", with the latter being what we are speaking about here, and the former of which was a common law of nations which also included natural law elements.

Interestingly the Court felt just the opposite of today's court.  It not only recognized Natural Law, but it also recognized that a nation's law could violate Natural Law, and where the United State's laws violated Natural Law, no matter how repugnant the violation, the Court had no choice but to uphold the written law of the United States.  For example, in a case called The Antelope, which involved a slave ship of that name, the Court held:

The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. 

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of neral usage. That which has received the assent of all, must be the law of all. 

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. 

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims? 

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made.

The Antelope, 23 U.S. 66 (1825), John Marshall, holding, amongst other things, that slavery was contrary to the natural law, but not the statutory law of the United States.  

That's a remarkable opinion.  Marshall clearly knew natural law, and without citing any religious text at all, he held that slavery was contrary to it.  He also didn't feel shy about noting the expansion of the phenomenon of the written law evolving to comport with the natural law, but he didn't feel the Court could take that into account.  Therefore, not only did Marshall recognize a natural law, but he also rejected the "evolution" of the law theory recently espoused by Justice Kennedy in the Obegefell decision.  The decision here was not unique in early US  Supreme Court opinions.

Thus, it may happen, that the occupant, who may have enriched himself to any amount, by the natural, as well as the industrial products of land, to which he had no legal title, (as by the sale of timber, coal, ore, or the like,) is accountable for no part of those profits but such as accrued after suit brought; and, on the other hand, may demand full remuneration for all the improvements made upon the land, although they were placed there by means of those very profits, in violation of that maxim of equity, and of natural law, nemo debet locupletari aliena jactura.

Green v. Biddle, 23 US 1 (1823).

The positive law of nations has ordained the rule; the natural law of nations has assigned the reasons on which it is founded; and Rutherforth, in his Institutes, explains those reasons, which arise from the amenability of governments to each other. A cruiser is amenable only to the government by whom he is commissioned; that government is amenable to the power whose subjects are injured by him; and after the ordinary prize judicature is exhausted, they are to apply to their own sovereign for redress. The principal object of that judicature is the examination into the conduct of the captors. The question of property is merely incidental

L'Invincible, 14 US 238 (1816).

After the turn of the Century, citations to Natural Law really start to drop off. I'm not sure of why, but two notable features of this era was the rise of efforts to regularize legal education, lead by the American Bar Association, and the onset of the Progressive Era.  The latter probably had more to do with it than the former.

Progressivism had its origins prior to the Civil War with the abolitionist movement, and perhaps ultimately ironically, it found much of its philosophic base in both Natural Law and religion.  After Emancipation the movement split, however, with the core of the group remaining focused on the plight of freed slaves, but with the more radical elements taking up other causes.  By the late 19th Century it was achieving results and it really came into full flower when Theodore Roosevelt became President.

In my mind, TR was a great President, but he's poorly understood in many ways and he never had a great respect for the law.  Indeed, when he was a law student, which he was only briefly, he was notorious for interrupting discussions on the law with inquiries about what should be regarded as justice.  TR skirted the Constitution in many instances and did not feel retrained or guilty in doing so.  Following him, the Supreme Court began to be more of an active institution itself, although it would take decades for that to really come fully into effect.  However, by mid 20th Century the Court was rejecting appeals to Natural Law and seemingly basing its decisions on other things, with that other thing being its concept of what the law ought to be.

Ironically, at the same time that the Natural Law has been retreating from the Court and forgotten by the law, it's been adopted to some degree by the population.  Citations to Natural Law in some quarters are common.  Aldo Leopold's The Land Ethic is a citation to Natural Law, in nature and human affairs.  Conservation organizations, like The Sierra Club, or The Theodore Roosevelt Conservation Initiative, or The Land Conservatory, are based on a concept of Natural Law.  Indeed, some radical ones, such as Greenpeace, are entirely based on that concept to a very radical degree, adopting the thesis that Natural Law trumps human law where the two do not agree.  Philosophers like Michael Pollin basically argue for a concept of the Natural Law.  Very loosely, some statutory law, like The Clean Water Act or The Endangered Species Act, exist with a concept of Natural Law in the background.  People who were debating same gender marriage, up until the Court attempted to end the debate, often argued based on concepts of the Natural Law.

The Court, however, oddly can't seem to find it.

Most recently, of course, we've seen this in Obegefell, which is pretty much based on theory that concepts of fairness and marriage have evolved, even if the electorate in a large number of states has expressly rejected that idea, and therefore the Court will force it.  The opinion comes very close to suggesting that the opinions of the right thinking people have evolved, and the Court therefore is going to do for the country what the country would do for itself, and would do soon anyway, if the country knew what was good for it.  In essence, the Court here acts in the role of Plato's ideal king against the rude mob, for the rude mob's benefit.  A pretty scary proposition.  In essence it adopts the thesis that there is no law, save the law the Court says exists. 

But how does that hold up under natural law?

Not well at all.

The ultimate problem with this is that our entire system of laws is based on a concept of Natural Law, and if we take that out, the law lacks a foundation.  At that point, attempts to substitute one such as the Court has done rely, at best, on a heavily weakened Social Contract theory of law.  While that theory is at least some sort of a theory, it's a weak one at best.  Social Contract advocates argue that the law is one vast contract between all of us human beings, or at least all of us human beings in the country, and the law ought to be determined from that.  The problem with that theory, besides that the Court doesn't begin to apply that evenly, is that the Court only uses "evolving concept" type logic when it wants to alter the state of the law from what a majority of people in some places want to do. It would actually make much more sense to argue Natural Law at that point, as Marshall did in The Antelope, but do what Marshall didn't do and over ride the statutory law, than it does to rely on some sort of social contract theory.  

Some may ask why any of this matters, of course.  But law is somewhat like currency.  It has to be based on something in order to be worth anything.  I know that this is a poor argument in terms of our current currency, which is based only on a promise that it's worth something, but it is nonetheless true.  Natural Law provides a basis for the law, and its something that almost everyone concedes existing at some level.  If it doesn't exist, all law is actually wholly meaningless, and based only on who can punish us and who cannot, which is the pure application of both the Economic Theory of Law and the Marxist Theory of Law.  Might makes right, in other words.  That's the antithesis of the American concept of law and stands squarely against what we think we stand for.  The Social Contract Theory of Law, while less vile, basically is an argument for Athenian democracy, which the Constitution actually was drafted in part to restrain.

All of this goes to argue that the current state of legal knowledge is a bit sad, and in need of reform if law is to be a "learned profession", rather than a mere economic based trade.