In (and through) the looking glass
The Claremont Review of Books has just posted several outstanding pieces from the new (winter) issue on its Web site. The issue affords a wealth of riches, and I intend to flag several of the pieces for particular attention.
The one I would like to note this morning will probably come in handy in my anger management therapy. It is a review of Sandra Day O'Connor's The Majesty of Law: Reflections of a Supreme Court Justice by Cornell University government professor Jeremy Rabkin: "In the looking glass."
Court watchers who have studied Justice O'Connor's opinions may find that they have taken the opinions more seriously than O'Connor herself does. The following passage of Rabkin's review is instructive: "The most alarming and characteristically thoughtless part of these 'reflections' deals with international law. Justice O'Connor tells us she has learned a lot from visiting with other judges. And she has noticed the proliferation of new international institutions—though not, it turns out, paid a lot of attention. 'When GATT was first drafted in 1947, there were approximately 31 signatories.' Actually, there were 23—but the 'approximately' might cover that. (Anyway, it's worse that she earlier speaks of the 'Fourteenth Amendment, adopted in 1870' when it was adopted in 1868 and gets rather more attention in her Court than the GATT.) She burbles on about 'the European Court of International Justice' (a mysterious entity evidently created in her mind by the convenient consolidation of the European Court of Justice in Luxembourg with the International Court of Justice in the Hague—though they have little more in common than residing on the same continent).
"'We will face' new 'challenges,' as 'international agreements proliferate and grow more and more relevant to the legal issues that have traditionally come before the Supreme Court.' Should we be alarmed by this trend? Justice O'Connor concludes that 'in the new century, dramatic changes in the geographic and economic borders that have separated the United States from the rest of the world will alter our society even more fundamentally.' I have no idea what she means when she talks about 'dramatic changes' in our 'geographic borders.' I don't even know what she means by 'economic borders.' She hopes that 'we will play a leading role in finding better means of resolving issues and common concerns with the other nations of the world.' I don't like the sound of that, but I admit I have no clear idea what she means by this statement, either.
"Justice O'Connor remarks, earlier in this volume, that it is not necessary to 'envision litigation as war, argument as battle, or trial as siege. Argument, for example, can be conceived of as discourse.' It seems to follow that court decisions need not be conceived as the exercise of authority but as dialogue with the community. Perhaps her idea of international law is some sort of ongoing dialogue with other nations--an ongoing process of 'resolving issues and common concerns' that makes it unnecessary to remember who has the last word on what.
"Jean Bodin, the 16th-century French jurist who popularized the concept of sovereignty, used that term in the French version of his great treatise (souverainité) but in a Latin translation offered the term majestas. Soon every monarch in Europe wanted to be called 'your majesty.' To speak of 'the majesty of law' was, at one time, to express the hope that law itself could exercise the ultimate authority once associated with absolute monarchs. Justice O'Connor seems to have a different idea.
"It's hard to find any echo of 'majesty' in O'Connor's rambling reflections. A more accurate title for this volume might have been The Triteness of Law or even, I'm OK, the Law's OK."
