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Tradition and the Judicial Talent

I previously suggested that a traditionalist judicial decision is self-consciously so. It demonstrates a keen interest in the coherence and continuity of particular legal practices and authorities over long periods of time. It is intentional about retransmitting and re-cementing those enduring legal practices and authorities in its own decision. And its traditionalism emerges from a close reading of the opinion and from attending to the court’s understanding of its own role.

In this respect, consider the plurality opinion authored by Justice Scalia in Burnham v. Superior Court. Burnham is a relatively late entry in a long line of cases in which the Supreme Court expounded the power of state courts to exercise personal jurisdiction over defendants. The Due Process Clause of the Fourteenth Amendment imposes certain limitations on this power.

But the Burnham plurality traces the roots of these limitations as far back as the fifteenth century English Yearbooks and the seventeenth century decision of Lord Coke in The Case of Marshalsea concerning the Court of Marshalsea’s jurisdiction over the King’s household and domestics. In his Reports, Coke said of the Case of Marshalsea that though the law of personal jurisdiction was known before it,

as in great Rivers, the courses, windings, fillings in, and out-lets are by experience vulgarly known, whereas the very Fountain and Head it self lie many times hidden and secret, so in this very Case, the Capacity, Process and Priviledge of this Court was often resolved in our Books and Years of Terms, and the Jurisdiction commonly known, and yet the true original Institution and Fountain it self lay somewhat deep and obscure, until it was wrought out by Antiquity, which hath so manifested the true sense of the ancient.

Coke’s method is highly traditionalist; indeed, it evokes the story of the Turkish stones in my previous post. It illuminates a long-standing and continuous legal practice by recourse to its antiquity. The law’s reason is thus “given light” and reconfirmed by an investigation of its ancient origins.

Thus, while the Supreme Court did say in the 1878 case of Pennoyer v. Neff that the judgment of a court lacking personal jurisdiction violates the Due Process Clause, that holding was simply continuous with and a ratification of the traditional rule in American courts before passage of the Fourteenth Amendment, which was in turn continuous with and a ratification of the traditional rule in previous English law. Indeed, Pennoyer itself says that in determining what the Due Process Clause requires, courts must be guided by the “well-established principles of public law respecting the jurisdiction of an independent State over persons and property.”

In 1945, however, the Court announced a somewhat different formulation: whether the assertion of personal jurisdiction satisfies “traditional notions of fair play and substantial justice.” In a series of subsequent cases that are the bane of first-year law students of Civil Procedure, the Court departed from various 19th century precedents in finding that defendants without physical presence in a state, but with some degree of contact or activity within that state, might or might not be subject to the state’s jurisdiction. Over time, the Court relaxed Pennoyer’s strict territorial rule of personal jurisdiction to account for changes in technology, communication, and interstate business activity that necessitated a more flexible evaluation of an out-of-state defendants’ amenability to personal jurisdiction.

Burnham involved the different question whether the state of California could assert personal jurisdiction in a divorce action over a defendant who was physically present within the state. The defendant had entered California on business and to visit his children, and he claimed that the more flexible approach for defendants without physical presence should apply in his case as well. The Court disagreed:

The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental….The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.

In so holding, the Burnham plurality denied that a state’s exercise of personal jurisdiction over a defendant depends solely on measuring the extent of his contacts with the state against abstract, evolving, and ultimately subjective tests of fairness or justice.

The plurality also noted that its methodology differed significantly from Shaffer v. Heitner, in which the Court had stated that “traditional notions of fair play and substantial justice” may be “readily offended by the perpetuation of ancient forms that are no longer justified.” Justice Brennan’s concurrence in Burnham likewise urged the Court to apply “contemporary notions of due process.”

The Burnham plurality responded that it was doing just that, for “contemporary notions of due process” just exactly are the “traditional notions of fair play and substantial justice” that “are applied and have always been applied in the United States.” These notions are not the playthings of the justices. They are not judicially evolving notions. Neither are they merely historical notions. They are traditional notions. Personal jurisdiction over a defendant physically present within a state may be reformulated as “fair” (as Justice Brennan urged) because the defendant could “reasonably” have expected it. But his expectation would have been reasonable only because personal jurisdiction in such circumstances is traditional: “fairness,” the plurality said, “exists here because there is a continuing tradition.” The tradition can change, of course, if a state wishes to change it. But the overwhelming majority of states had not, and it was not the justices’ proper role to do so.

The plurality opinion in Burnham is, in sum, one of the Court’s most traditional decisions. And in its response to Justice Brennan’s progressive understanding of the judicial role, one is reminded of Eliot’s famous essay, Tradition and the Individual Talent: “Some one said: The dead writers are remote from us because we know so much more than they did.” Precisely, and they are that which we know.

Reader Discussion

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on January 18, 2016 at 13:16:03 pm

Justice Brennan did not seem to be of a single mind on the role of tradition. His 1990 appeal to due process and fair play is to be contrasted with his opinion in Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663 (1974). In that case, after prattling on about deodands and in rem enforcement of forfeiture, Brennan approvingly cites Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921):

'But whether the reason for (the forfeiture) be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.

Deference to tradition can perpetuate both the good and the bad. On the whole tradition should not be disregarded without suitable reflection and analysis; "Don't take down a fence until you know why it was put up," as President Kennedy paraphrased Chesterton. But tradition not only embodies principles, experience and reason, it can also be used as a tool. or even a weapon, to produce anomalous outcomes. The traditions of monarchical government do not always square cleanly with those of republicanism or maturing notions of civil liberty.

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z9z99
on January 18, 2016 at 14:10:33 pm

Z:

"The traditions of monarchical government do not always square cleanly with those of republicanism or maturing notions of civil liberty."

Right about that!
Yet, let me ask you: Is there not some limiting principle, some boundary(ies) as it were that ought to be observed (respected) when either refuting or "extending" tradition? Moreover, is there not a proper, and in this case, an enumerated power or *mechanism* to perform the "extension" / refutation?

In other words, ought we to be so reliant upon a mere subset (5 out of 9) of both our polity and our governing structure / mechanism? If an amendment or a statute may be said to be the product of consent, and this consent is based upon either majoritarian (and super-majoritarian) principles is it proper for a group that may be by definition / training / (duty?) inclined or impelled to employ counter traditional logic, i.e., the artificial logic or reasoning of the law? I am not here simply talking about the proclivity of some jurists to go off the reservation but rather the requirement that judges *judge* based upon something other than what may be deemed "traditional" logic.

Hope this makes sense.

Heck, in the case of supermajoritarian obligations (amendments) I would even settle for a requirement that to overturn such obligations that a supermajority be required.

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gabe
on January 18, 2016 at 15:11:42 pm

Gabe,

First things first. How does Carroll deal with Marshawn Lynch's 11,500,000 salary cap hit in 2016? Does he have enough left in the tank to keep him around, or is it time to retool?

As to your other question, if I may paraphrase, what are the constraints on the judiciary in either applying or rejecting tradition in deciding cases? I would propose breaking this question into two parts, the meta-question, and the non-meta- question.

The meta question is: what traditions affect how tradition is treated in jurisprudence? This always presents somewhat of a contradiction in the notion of stare decisis because in effect you rely on one set of decisions or established principles to overturn another set. One would think that traditional analysis of tradition would pretty much just perpetuate traditional views and policies, and if the decision makers were honest, this would be the case. But they are not honest, and appeals to tradition in the name of overturning tradition are often just intellectual fig leafs pasted onto another agenda.

The non-meta-approach dispenses with the charade, and just declares that a particular tradition is superseded by other concerns. Justices Kennedy and Breyer like to do this, because they seem to embrace a more new-agey, mysticism and social philosophy to the detriment of consistency and historical relevance.

The thing that reconciles these two views is that both are different aspects of the same phenomenon: legal disputes, and laws, regulations statutes, in general are at base expression of preferences for particular interests. When the priority of interests changes, tradition will be invoked if it is useful, and discarded when it is not.

Traditions, however can be troubling things to powerful interests because traditions are often organic. They arise spontaneously because people connect with them and find them beneficial, whether that be as emotional solace, as received wisdom, or as institutions that ease relationships with one another. Traditions survive because they are useful; it is what separates them from fads. Sometimes the usefulness is lessened, as for example in religious dietary laws, as a result of improvements in food safety, or changing gender roles as a result of technology that makes physiological differences less significant. But to answer your question, the robes do not do away with tradition, and they most likely cannot sustain dying ones. Traditions are inherently democratic and whether they stay or go depends on whether or not ordinary people find them valuable.

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z9z99
on January 18, 2016 at 19:32:33 pm

Z:

Thanks - probably the most sensible comment(s) I have come across in a while.

1st things 1st (and in keeping with the theme);

Much commentary on abandoning the tradition of Beast Mode; not certain I agree (or at least for the popular reasons /biases). On the other hand, this may be a case where the end of one tradition -Beast Mode - may lead to the end of another and somewhat less salutary tradition, i.e., Coach Carroll's obstinate adherence to the tradition of "pounding the ball" - even in the face of much evidence that his quarterback is capable of opening the playbook. Question: Is there anyone in the Western Hemisphere who did not know that the first play from scrimmage would be an inside handoff to the Beast? so much for tradition - I prefer Bellichek' more adaptive strategies (so I guess I must not be a traditionalist after all, HA!).

More seriously, however, while I do substantially (preponderantly?) agree with your formulation on tradition based change and understand the *reflexive* role of jurists in adapting to the perceived need (benefit) of change, still, there is a sense that a number of jurists may in fact play a somewhat more active (and thus less responsive) role in the transformation of traditions. It is this with which I take issue. Yes, it can be said that the common law is nothing more than the *shaped* (cultural or logical) accretion of centuries of tradition. I'd call this the "Common Mind" basis of the Common Law. Yet, and as I indicated in a comment on McGinnis 14th Amendment argument by referencing Justice Bradley in the Live Stock Dealers case (OMG, I hope I don't sound like a legal beagle wannabe here) where the good judge made quite plain his impatience with and unwillingness to accept the stated intentions of the drafters as well as the common understanding of the people and the ratifiers - in effect the judge decided that he could divine something that others could not.
In a nutshell, that is my objection. Eventually, this decision of Bradley (and / or others) comes to acquire the status of settled law. So, yep, tradition can also be a bad thing!

Anyway, again thanks for the very sensible response.
Now back to my *unquietude* and dreams of "Next Year, Next year."

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gabe
on January 18, 2016 at 19:39:14 pm

Z, nice points. Thank you. Justice Brennan also exhibits, I think, a good deal of traditionalism in some of his religious liberty opinions, particularly those on the free exercise side of things.

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Marc DeGirolami
on January 18, 2016 at 20:55:32 pm

Gabe,

Just a couple more thoughts. Which do you think people find more compelling: "Evolving standards of decency" or "traditional standards of decency;" "contemporary notions of due process," or "traditional notions of due process?"

I suspect that whether "tradition" or "evolving/contemporary" standards carry the argument depends on which is more likely to produce the desired outcome. There does seem to be some substance to the distinction however. At least to a first approximation, tradition is more objective; it can be identified through historical inquiry and its shape traced though varying circumstances and crises. The fact of a tradition is seldom in doubt. "Evolving" or "contemporary" standards on the other hand may be supported by no more than wishful thinking or selective polling. Some "standards" may be completely impractical and be little more than Utopian and fanciful gobbledygook. Tradition at least can claim whatever legitimacy attaches to having endured through time, by being embraced by people in different circumstances and different challenges. "Evolving" standards may have little more to recommend them than abstract aspirations.

Of course, a journey typically has both an origin and a destination. Evolving standards may aspire to some faraway goal, which is important no doubt. "No wind favors a ship without a destination" after all. But tradition is the journey, and that is why it matters. The journey is where life is lived, with all the risk, hope, disappointment, struggle, strife and triumph. Were it not for the adventure of the journey, no matter how desirable the destination, the ship would never leave port. If an institution is the lengthened shadow of one man, traditions are the footsteps of several generations and countless individuals. Traditions survive because they come come from people living meaningful lives.

Many jurists either forget this or were unaware of it. If all they have is a destination in mind, and no idea how to get there, well, they (and we) may wind up in some pretty undesirable places.

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z9z99
on January 18, 2016 at 21:05:37 pm

Z:

Abostively eloquent (as always).

"“No wind favors a ship without a destination”

Let me just add the following:

It would appear to be somewhat less than fruitful to tie oneself to the mast of a ship that has been commandeered by a brigand, whether knowingly or unknowingly; so, too it would be equally pointless to so tie oneself to a ship mastered by one who has no sense of navigation, knowing not from where the ship has proceeded and without only the most minimal understanding of where it is headed or how to control the rudder or the propulsion system.

take care and wax lyrical anytime you see fit, brudda!!! Now off to finish my sauce! I like to think I know how much energy to apply!!!!

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gabe
on January 18, 2016 at 21:22:24 pm

Just to be clear, the quote is a paraphrase of Lucius Annaeus Seneca,

When a man does not know what harbour he is making for, no wind is the right wind.”

Ad Lucilium Epistulae Morales: Volume II. “Epistle LXXI: On The Supreme Good.”

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z9z99

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