Congressman Jim Ryun is a great athlete and a great Kansan. Last week, it was reported that he was sponsoring a congressional resolution expressing disapproval of recent cases decided by the Supreme Court of the United States. His disapproval is not limited to the findings in these cases. Instead, Congressman Ryun disapproves of the way the Supreme Court decided those cases.
In particular, he is troubled that the court, in its deliberations and in its opinions, consulted not only American cases, but also several cases decided by foreign courts as well as studies of public opinion. Congressman Ryun believes that the court should not be permitted to do this and that such actions by the court were, according to the news reports, "undemocratic."
In this, Congressman Ryun betrays a fundamental misunderstanding both of American law and American legal history.
Most fundamental of the errors underlying Congressman Ryun's concerns is his misapprehension of what it is that judges do when they decide a case. Judges are not machines and they do not simply read prior cases and apply them mechanically to deciding the cases in front of them. If this were all that judges did they could be replaced by simple computers and our system would soon become outmoded and unjust.
On the contrary, judges are supposed to use their experience and knowledge and to consult all materials they consider to be useful in deciding a case. How much weight they give to any particular case or other source depends upon the law, tradition, and their own judgement. But American judges have never been limited to considering only American cases. From the very beginning of our country's history, our judges, including judges of the United States Supreme Court, have always cast a wide net in looking for authority and inspiration.
John Marshall, the first great chief justice of the United States, often consulted sources other than cases. In one important case for which he wrote the opinion, Laidlaw v. Organ, a case that was instrumental in establishing free market economics in the United States, Justice Marshall consulted the writings of the Roman lawyer and moral philosopher Cicero.
Justice Joseph Story, a contemporary of Marshall, frequently cited Roman law, French law, and German law in his Supreme Court decisions. He went so far as to hire German law students to translate contemporary German material for his use. Indeed, Justice Story was also the first great professor at Harvard Law School and was the author of numerous legal treatises. His treatises on contract law became the basis for American commercial law. Foreign cases are cited on every page.
So far as citing "popular opinion" and sociological data, Justice Louis Brandeis, one of the greatest Supreme Court justices of the 20th century, became famous as a lawyer for his "Brandeis Briefs," which cited no cases at all, only economic and sociological data. Even more recently, in the decision in Brown v. Board of Education, whose 50th anniversary we will celebrate next year, some of the most important authority cited by the court in its opinion wasn't cases at all, but sociological surveys of "popular opinion."
Any lawyer or person familiar with the American legal system will tell you that judges often need to be willing to consider more than precedent, i.e. prior cases. Cases can be outmoded, for one thing. Also, often there are no cases that are on point. Third, on occasion, earlier decisions may be wrong. In such situations we want our judges, including those on the Supreme Court, to consider anything that is relevant and may help them come to a wise and just determination.
Finally, Congressman Ryun accuses our current Supreme Court of acting in an "undemocratic" manner. The fact is, that if the justices were to limit themselves only to their own prior opinions, or even the prior opinions of other federal courts, this would be far more anti-democratic. Federal judges are appointed for life. Often they remain on the bench for decades. If they may consider only their own and their colleagues' decisions and must ignore all other input, then the likelihood of their decisions becoming elitist and divorced from current realities and current needs becomes all the greater.
The truth is that Congressman Ryun doesn't like the substance of what the court decided. This is his right and it is perfectly proper for him to criticize the court on substance if he wishes. But to criticize the court for considering a broad range of sources in reaching those decisions is just plain wrong.
Mike Hoeflich is a professor in the Kansas University law school.