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March 14, 2005

More on Tribe on Richmond Newspapers

Juan Non-Volokh at VC notes today that Tribe has responded to charges that he told a false story in his Green Bag article on arguing Richmond Newspapers, 448 U.S. 555. As I blogged at length here, with lengthy quotations from Tribe's article and his brief in that case, Tribe's article does, as Romesh Ponnuru charged at NR, say that he pushed a 9th Amendment argument before the Supreme Court in that case, but actually he pushed 1st and 6th Amendments arguments, and mentioned a 9th Amendment argument briefly.

Tribe has been silent, but he has now responded with a open a letter to National Review. Tribe repeats his claim that he pressed the 9th Amendment argument in Richmond Newspapers . He says:

[Ponnuru] undertakes a virtual grave-robbing exercise, excavating an 11-page memoir from Green Bag in which I recalled, in a voice deliberately "personal, not professional or academic or legal," my struggle to cope with my father’s sudden death a day after I called home to wish him and my mother a happy 40th anniversary....

My essay was in essence a family scrapbook, complete with baby pictures and photos of the father I miss to this day, not a tract on the trajectory of legal doctrine. It spoke not of the dynamics of the Court or the psychology of its Justices but of "the emotional equation I felt as I stood" before them to argue that case "so soon after seeing my father's body" lying in an open casket -- an equation in which "the murdered man's wife and kids" were "among the victims of the state's decision to conduct" the trial of the accused murderer "outside their gaze."...

[Ponnuru] then tries to make that (non-existent) boast seem all the sillier by insisting that the "Ninth Amendment argument" provided only a "rhetorical flourish" in my brief. In fact, it occupied fully seven pages, in a section whose title quoted the amendment’s text but whose burden was that even precedents< I> not mentioning the amendment, involving "unenumerated rights" such as voting, travel, and proof beyond a reasonable doubt, support a mode of analysis that covers the public’s right of access to criminal trials.

As for grave-robbing, remember who dug up the body and displayed it in the public square. Anyway, rather than refute Ponnuru's charges in detail, Tribe refers the reader to Goldstein's detailed reply to Ponnuru, so it seems Tribe thinks that is the best that can be done.

Tribe's defense is a good illustration of liberal jurisprudence.

(1) Facts don't matter, but emotions do, and truth is something very personal. Tribe says, in effect, that it doesn't matter whether his Green Bag article misrepresents what happened, because it is "not a tract on the trajectory of legal doctrine. It spoke not of the dynamics of the Court or the psychology of its Justices...". Rather, it was an article about Tribe's emotions.

Of course, most people don't care much about Tribe's emotions and do care about details of Supreme Court history that could be useful in understanding what happened. The article was about how Tribe argued the case, something to which not just his emotions but his actual argument is relevant. And while Tribe may think he is safe in retreating to the home ground of what his emotions were, if he can't get the facts about his brief and oral argument right, facts easily checked from documents, why do we think he can or wishes to remember his emotions correctly?

(2) Numerical evidence is unreliable; overall impressions are more accurate. Ponnuru notes that in his brief and oral argument Tribe hardly mentions the words "Ninth Amendment"-- though he does mention other amendments a lot, as I note in my post. Tribe does use one number-- the "seven pages" of section IID-- but he doesn't mention that there are 70 or so other pages in the brief, that the 7 pages are placed after his main arguments, and that the 9th Amendment is just part of the 7 pages.

Numerical evidence is nice because is it is objective, which is why Ponnuru and I use it instead of making our subjective impressions our only evidence. It can, of course, be misleading. For example, Tribe does not mention the 9th Amendment even once in his brief's summary, but the 9th amendment argument is actually there, if not emphasized. But in this case the word counts are not misleading. If you read the brief quickly yourself, your overall impression will probably be that Tribe doesn't argue the 9th amendment at all, because it is so small and buried a part of the brief. If you read more carefully, you will see it is there, but your overall impression will be that he hoped to win on 1st and 6th amendment arguments.

(3) Don't look carefully at the words of the text, its history, or its author's apparent intent; look to what you would like the document to mean, even if nobody else could see that until you explain it years later. As with so many ideas that liberals says are in the Constitution, the idea that Tribe was pressing the 9th Amendment unenumerated rights argument is not apparent from his brief, although it is at least mentioned there, unlike so many rights the Supreme Courts says are in the Constitution. But if you asked someone to read the brief and say what it was all about, they wouldn't say he was pressing that argument.

Goldstein's March 7 post here is so well written and so self-confident in its suggestion that in my post I misread the brief that I looked back at the brief again. Could it be that I missed something, and that although the 9th Amendment argument takes up very little space, it actually was the necessary culmination of a more complex argument involving the 1st and 6th Amendments?

No. I conclude that Goldstein is a good lawyer, and was bluffing. The summary section of Tribe's brief clearly says there are three separate arguments-- from the 1st Amendment, the 6th Amendment, and, if those fail, "it's gotta be in the Constitution somewhere" (my words in quotes there, not Tribe's).

Thus the Sixth Amendment, like the First, guarantees that criminal trials will be open to public attendance and observation. But even if the inference from these two texts seemed problematic, a judicially enforceable norm of open trials would follow from the role such trials play in the Anglo-American regime of ordered liberty and in our Nation's history and traditions.

On the other hand, Justice Burger's opinion , while to my mind rather confused, does seem to make a two-part argument-- that the 1st Amendment guarantees certain rights, and various unenumerated rights are necessary if the 1st Amendment is to succeed in doing that. (Reading the opinion, concurrences, and dissents is quite depressing, by the way-- typical waffling around to try to rationalize getting to the conclusion the judges want anyway for reasons of policy.)

Tribe's brief does not make a two-part argument, but perhaps he wishes he had, and so remembers it that way. Or, if you like, Tribe's 1st Amendment argument implicitly contains unenumerated subsidiary rights, and Burger just divided up the argument differently. But this takes us into different territory, which Ponnuru and Goldstein did not tread-- whether the 9th Amendment did matter at all to the outcome of Richmond Newspapers. Is Tribe is correct in his Green Bag article when he says,

Where was that protection to be found in the Constitution's text? Nowhere, exactly, but the plurality opinion of Chief Justice Burger made a point of recalling how James Madison -- responding to widely voiced concerns at the time of the Founding that adding any finite list of rights to the Constitution to assuage the fears of some about potentially excessive government power might perversely backfire, carrying a negative implication about rights not mentioned -- had spearheaded a move that "culminated in the Ninth Amendment," which was to operate as a "constitutional 'saving clause,' ... to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined." The right recognized in Richmond Newspapers, although it was later described simply as a First Amendment right (and might thereby be said to have emerged with free speech wings that had shed the Ninth Amendment chrysalis from which it sprang), became the first of only two rights ever grounded by a Supreme Court majority or plurality in an analysis that spelled out its debt to the Ninth Amendment as a rule about how to construe the Constitution.

The quote from Justice Burger is from footnote 15 of his opinion, and is the only mention of the 9th Amendment in it. In the paragraph thus footnoted, Burger is saying that the Founders worried that without explicit mention, unenumerated rights would be denied, but that they (explicitly including Madison) decided they didn't need to say anything about it. Only later was the 9th Amendment proposed. I read this as saying that Burger would have reached the same result even if the 9th Amendment did not exist! (This, actually, is the last part of Tribe's brief's Section IID.)

Just after footnote 15, Burger makes the unenumerated rights part of his argument:

But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. [n16] The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.

Thus, Burger is saying that he is pulling the right of newspapers to attend criminal trials from the same place the court pulled such things as the right of privacy. Burger's claim is that the source of the new right is nothing novel, so if it is a 9th Amendment argument, the Court has been using that argument for years in prominent cases, not just the two times Tribe says.

I'm pretty far afield by now, and have gotten into the sometimes entertaining but not terribly serious activity of trying to figure out not the law, but what Supreme Court judges (or their clerks) were trying to say, or might have liked to have said if they'd been smarter. So I'll close with this paradox: Tribe may be right that his argument carried the day for his client-- he based his case on the 1st Amendment, not the 9th, so if the 9th Amendment was crucial to Burger, Tribe cannot claim credit for victory; but actually it was the 1st Amendment that was crucial to Burger, not the 9th, so Tribe actually can claim credit.

Posted by erasmuse at March 14, 2005 10:15 PM

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