Much as I’m irritated at the New York Times’ paywall* a throwaway line in this recent article about the same-sex marriage cases pending before the Supreme Court caught my interest so I spent one of my ten free articles a month on it. It seems that a rather large group of Republicans who once held prominent political offices have signed on to an amicus brief advocating the finding of a Constitutional right for same-sex couples to marry.
These include former governors like John Huntsman, Christine Todd Whitman, William Weld, and Jane Swift, former Cabinet level or near-Cabinet level executive officers like David Stockman and Carlos Gutierrez, former RNC chair Ken Mehlman, former legislators, and so on. So you might think the throwaway line that caught my interest was “the presence of so many well-known former officials … suggests that once Republicans are out of public life they feel freer to speak out against the party’s official platform.” But no.
This is the line that raised my eyebrows:
Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.
Way back at the very roots of our legal traditions were the law courts of the ancient republican Romans. And when one studies ancient Roman culture and law, one finds that cases in the law courts were very often simply extensions of politics, ways for members of factions who had been on the losing end of legislation to exact revenge on the now out-of-office lawmakers who had crafted the laws. The laws were created to address ostensibly public problems but the law courts redressed private grievances.
Immunity from lawsuits like these was granted only to those who were currently holding office, and the general consensus was vulnerability to suit after leaving office was a check against an officeholder’s taking too egregious an action while invested with political power. The criteria against which a public official’s actions were judged were at least as much the subject of cultural consensus as positive law, in a manner not unlike the constitution of the United Kingdom today. There was no substantial distinction between civil and criminal law, and there was no limitation period on the actions brought.
So, let’s say a guy named Biggus Diccus got himself elected consul and he promoted and passed a law encouraging the creation of ceramic pottery, by way of imposing a tax on baskets woven from straw and similar materials. While he’s consul, Biggus Diccus is immune from suit. Typically after his consulship, he’d be appointed the proconsular governor of a province, where he’d go to primarily administer the collection of taxes and oversee the province’s military presence for three to five years. So maybe six years after his consulship, his pockets nicely lined with bribes and graft, Biggus Diccus comes home to Rome and there just inside the gates of the city is a process server who slaps him with a suit by Marcus Hempicus, the owner of the biggest basket-weaving consortium in the city, complaining that the tax law Biggus Diccus had implemented during his consulship had cost Marcus Hempicus ten thousand denarii a year in lost profits.
The equivalent sort of thing today would be greeted with massive indifference by our courts. We’d tell the basketmaker, “Tough noogies for you.” The lawmaker who had pushed the pro-ceramics tax had been discharging his office at the time he did it, so the action which is the subject matter of the suit is what enjoys immunity, not the person. And if the public lawmaking entities had determined to extend governmental protection to potters at the expense of basket-weavers, the basket-weavers’ options were to participate in the political process, which has winner and losers and in this case the basket-weavers just plain lost and we all have to live with that. Better luck next time, basket-weavers.
So that’s how we’d deal with a suit like that on the merits. But that wasn’t how the Romans did it. As far as the Romans were concerned, Marcus Hempicus v. Biggus Diccus would have been a righteous enough suit to proceed to trial. Which is where today’s Gray Lady article gets interesting. You’d think, or at least hope, that an impartial judge would be appointed and the attorneys arguing the case would address their questioning of witnesses and legal arguments to the merits of whether Biggus Diccus had violated some important principle of Roman law when he pushed the basket tax through the Senate.** But again, that would be how we moderns look at law, not how the Romans did it.
Most of the case would have been taken up in the form of a parade of friends of the litigants. First, one of the two consuls then holding office would appoint a judge. Depending on who that consul wanted to win, or whichever litigant bribed him the most, the consul would appoint a judge obviously biased in favor of one or the other litigant. I don’t know of situations in which the pretense of objectivity was violated so badly as to have, say, a litigant’s brother sitting as his judge, but it would come close to that.
Then, each litigant would appoint a lawyer — and the identity of the lawyer, his prominence and reputation, was more important than anything that lawyer said. Each litigant would then call all of his clientele and all of his amici and perhaps even his patron to come and vouch for his good character, patriotism, and appeal to the jury’s emotions of pity and outrage. Mixed in with all of this would be calling various inimici of the other party as witnesses to testify as to the low character, almost completely irrelevant dirty deeds and scandals, unsavory personal habits, and fell intent of the adversary.
At the end, each lawyer would deliver an impassioned speech to the jury — a body of anywhere from twenty to a hundred nobles drawn from various ranks of society, which would then issue a majority vote based in theory on what they had heard in evidence and argument, but in reality on their desire to become amici with various members of the bar or witness panels and their willingness to accept bribes.
The amazing thing to me is that many of the judges involved actually did seem to take their roles seriously, that they did try to steer the courts under their charges to make decisions more or less on the merits of the disputes. Now, not every case involved former consuls and high-profile political revenge. Often enough, it was middle-class folk disputing with one another and no one was important enough that jurors or judges needed to use the trials to jockey for political position. But it was the case that the identity of the witnesses and the litigants was more important than the merits of the dispute.
The Gray Lady is indicating that the identity of the former Republican lawmakers signing on to the amicus briefs is more important than the legal arguments in them. The judges, who will decide the case,*** will be moved more by the political cover afforded them by this brief than by the law and facts and theories developed in the brief. The merits are less important than the disputants. Rather like they were for the Romans.
* I understand, but I’m irritated. The Gray Lady needs to make money like any other business and if sugar just gives it away all the time, ain’t no money coming in the door to pay for all them fancy journalists.
** Technically, the Senate wasn’t a lawmaking body but rather one that provided advice to the consuls, who legislated on their own authority in sort of a blended executive and legislative function. In practice, a consul who wanted to do anything that pretty much anyone was going to complain about needed to get a majority vote in the Senate to implement his desired law.
*** I should say “judge” since although the Times is pretty elliptical about this, everyone assumes that all of this is aimed at Justice Anthony Kennedy. I suppose there’s an off chance it could also be aimed at Chief Justice John Roberts. Either way, and as much as I’m in favor of SSM rights, I’m not sure I’m comfortable with the kritarchy.