Thursday, December 11, 2008


Division 6 of the California Court of Appeal 2nd District, where I do my job, is located two blocks from the ocean in the beautiful city of Ventura. The name of the city is in fact "San Buenaventura." But “Ventura” seems fine with most of the residents. In this respect they are unlike many of their counterparts who live in the emerald city up north and cannot abide the appellation “Frisco.” I suppose Frisco sounds boorish in comparison to the more euphonious Ventura.
But how about “L.A.”? What could be more impersonal than initials to refer to the City of Angels? Yet few people in Los Angeles are offended by this stunted sobriquet. However one refers to Los Angeles, it is no less a vibrant city, and too preoccupied managing its cultural, economic and diverse interests to be self-conscious about its nickname. Yet, I wonder how the women of Philadelphia feel about their historic city's motto. I think it should be called "The City of Sisterly and Brotherly Love."
A reference to a city is only a word, but, depending upon the context, words often carry deeply felt emotions. Is San Francisco “liberal” and Ventura “conservative”? Whatever those terms mean, the feelings they evoke depend on whether we are talking about politics, cultural values, economics or clothes.
Ventura’s yearly summer county fair gives the community an important tie to the past. So, in that respect, I suppose the fair is an event that reflects a conservative value, not necessarily a political agenda. 4-H club kids caring for pigs, pygmy goats, prize turkeys, cattle, proud roosters (are there any other kind?) and rabbits speak of a past age instead of a new age. Most rings were in the noses of the bulls instead of the people. The very name, “fair,” connotes balance and acceptance.
At the fair was a hypnotist. She enlisted volunteers from the audience to come on stage and act stupid. I wasn’t impressed. I do that without being hypnotized. Some would argue that this column is an example. My friends asked the hypnotist to turn me into a political conservative. It didn't take. She confirmed that no one will follow unreasonable commands. I do not want to be labeled politically as a conservative or liberal, but I am not much concerned about being viewed as a conservative dresser.
This just proves that words matter according to the context in which they are used. But those who use words to attack individuals for their opinion defeat rather than advance their own point of view - particularly in judicial opinions.
In Boumediene v. Bush, 128 S.Ct. 2229 (2008), our high court held that the protections of the Detainee Treatment Act were insufficient and that alien detainees at Guantanamo were entitled to the constitutional protection of habeas corpus to challenge the legality of their detention. In a separate dissent Justice Antonin Scalia disagreed with the majority and agreed with Chief Justice John Roberts' dissent that the act provided "the essential protections that habeas corpus guarantees." He further argued that all historical evidence showed that the writ of habeas corpus would not be available for aliens captured abroad.
But what struck me about Scalia's dissent was the manner in which he criticized the justices in the majority. He scored those colleagues for making the war on Islamic radicals harder on our country, which “will almost certainly cause more Americans to be killed.” The weak adverb “almost,” to modify “certainly,” certainly did not do much to let the majority off the hook. At least Scalia is almost, but not absolutely, certain the justices in the majority will cause Americans to die. He ended his dissent with the warning, "The Nation will live to regret what the Court has done today."
Whatever the merits of Scalia’s dissent, it was not enhanced by the harsh moral indictment of his colleagues. A defendant charged with a crime may not suffer a conviction solely because of a judge's ruling that the defendant was denied one or more constitutional rights. Whether the judge made the right or wrong ruling, he or she is “almost certainly,” I mean certainly, not the cause of harm the defendant may inflict on some future victim.
Last month I attended a symposium at Peppperdine School of Law entitled “Lawyering and the Craft of Judicial Opinion Writing,” moderated by Professor Douglas W. Kmiec. The panel members included U.S. Supreme Court Justice Samuel Alito, Dean Kenneth W. Starr, 10th Circuit Court of Appeals Judge Michael W. McConnell and former U.S. Solicitor General Walter E. Dellinger.
Starr said that a textual approach to the law is the preferable one. Alito suggested that judges should start with the language of a statute, and apply the law. This may involve interpreting the law, but it does not involve drafting the law. Alito voiced his disagreement with Judge Learned Hand’s dictum, “The best way to misinterpret a statue is to read it literally.”
But to literally take a statue at face value in some cases would produce an absurd result that would be contrary to the Legislature's intent. An old but no less vital case, Riggs v. Palmer, 22 N.E. 188, 189 (1889), gives us an example: "There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street." No reasonable court would hold a barber liable because he nicked the person he was shaving. The soccer mom devoted to her son, one day in exasperation over his misbehavior, says, "Johnnie, I'm going to kill you." No one could seriously argue she has made a terrorist threat. Alito acknowledged that it was unremarkable that the majority and dissent in Dist. of Columbia v. Heller, 128 S.Ct. 2783 (2008), the gun control case, reached different conclusions. This, even though Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the dissent, were both drawing their conclusions from their respective examination of the Second Amendment's history. Alito said this divergence of opinion was not "disturbing."
This takes me back to Scalia's dissent in Boumediene. It was disturbing, not because it presented a historical view about the application of habeas corpus that differed from the majority view, but because of its accusation that the majority has harmed our country. A carefully drafted opinion that will persuade is one in which the author carefully chooses and arranges the words to make an argument. When the argument becomes a personal attack, it loses its vitality and the judiciary suffers. Perhaps that is why Alito joined Roberts' dissent, and not Scalia's.
Maybe the hypnotist at the Ventura County Fair could drop by Scalia’s chambers and “put him under.” While he is in a hypnotic state, she could suggest that in the future he argue his points without personal denunciations. But it probably may not work. I fear he just might think the suggestion unreasonable.