The Wrongs of Rights?

The New York Review of Books has an interesting piece by David Cole on Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. The thesis of the book (which I haven’t read, so I’m relying on prof. Cole’s summary) is that litigation in pursuit of the recognition of marriage equality has done more harm than good, if not to that specific cause then to gay rights or civil liberties more generally. Indeed, prof. Klarman claims that that’s what usually happens when courts oppose public opinion in defence of the rights of unpopular minorities. Unpopular judicial decisions provoke backlash, and the price of a sometimes inconclusive victory in the short term is decades of hostile legislation. Prof. Cole argues that this isn’t necessarily so; what prof. Klarman characterizes as backlash would have happened regardless of the courts’ interventions, but without those things would have been even worse; and in the case of same-sex marriage and gay rights more generally, courts have done a lot of good, not least by forcing people to confront issues which would otherwise have remained marginal at best. This is all very interesting, though I don’t know enough to tell who is right and to what extent.

What I would like to comment on is prof. Cole’s more general argument about judicial review and its role in advancing civil liberties. “The very reason,” he writes

we protect certain rights through constitutions that resist revision by majorities is that some rights by their nature are unlikely to be realized through the ordinary political process—particularly the rights of minority groups, unpopular dissidents, or the criminally accused. If we could rely on the ordinary political process to protect such rights, there would be no need for protecting them through judicial enforcement of constitutional principles. But history shows that we cannot.

Precisely because constitutions are needed to safeguard unpopular rights, protection of those rights is likely to spark a popular reaction.

Constitutional protections can mean, as in the case of marriage equality, that “the legal argument [is] very strong” despite the hostility of public opinion. And of course the courts’ job is to look to the law, not to opinion polls. So if their decisions provoke backlash, “we might well take that as evidence that they are actually performing the function that we expect from them.”

I think this is much too optimistic, or maybe too simplistic. Courts aren’t independent of public opinion in the way prof. Cole seems to suggest. Courts are certainly not supposed to look at opinion polls, and I’m not suggesting that they do, though some judges at least are clever politicians in their own right. But clever politicians or not, and however good lawyers, their legal ideas and arguments don’t come out of thin air. Their ideas about civil rights are only as advanced―and sometimes much, much less advanced―than those of their time.

The famous case of Griswold v. Connecticut, 381 U.S. 479 (1965), which struck down a state law prohibiting the use or provision of contraceptives or information about contraceptives, even to married couples, is an apt illustration. Eventually, it was read as standing for a general principle of sexual privacy and relied on in opinions striking down prohibitions on abortion and gay sex. If the Supreme Court of the United States rules in favour of marriage equality―this year or at some point in the future―that will be, and will be said to be, the result of a process that started in Griswold. Yet that opinion did not necessarily promise so very much. The majority went to great pains to argue that its holding applied to married couples, no one else. Justice Goldberg’s concurrence refers to “statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication” and endorses statutes criminalizing homosexuality (498). Now admittedly I cannot tell for sure, but I suspect that the idea that such statutes would soon enough be considered, beyond doubt, unconstitutional, would have been surprising to the Griswold court, perhaps astonishing and distressing.

At any given time courts can only do so much for civil liberties. The beauty of judicial review isn’t that it can accelerate progress in this area by leaps and bounds over popular opinion. It might, however, do some useful things. One is to bypass legislatures which aren’t even prepared, for whatever reason, to go as far as the opinion of their constituents. Another, as prof. Cole points out, is to bring some issues to the public’s attention. And a third, which Griswold’s progeny (contraceptives, I suppose, don’t always work as intended!) demonstrates, is that judicial decisions, probably to a greater extent than legislation, have to stand and can be interpreted as standing for certain principles, which can then be extended beyond the expectations of their authors, and used to advance rights and liberties further―when judges, and perhaps the public, can accept the next step.

The Chinese Court of Public Opinion

In one of my first posts, I asked the question “[w]hat is the place of the court of public opinion in the judicial hierarchy?” I was concerned at a story in which, as I described it, “in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.” Now comes an interesting variation on this problem, casting a somewhat different light on my concerns, in the form of a story in the Globe & Mail about the court of public opinion in China.

Chinese courts cannot or will not hold the powerful to account – they are not independent, and perhaps also corrupt. “Thankfully,” writes the Globe,

the Internet – and specifically China’s wildly popular Weibo microblogging services – has rushed in to create a court of public opinion that now presides over cases that the country’s judiciary refuses to. And those public judgments are forcing government officials to reluctantly deal with cases they’d rather not.

Stories that would never have made it into the Chinese media spread on the internet, despite the censors’ best efforts. And sometimes, when online fury is intense enough, official media take up stories that the internet makes hard to ignore. In some cases, abusive officials even face sanctions. Yet even in these – rare – cases, “[j]ustice has yet to be fully served … and there are plenty of reasons to doubt it ever will be.”

In countries where the judiciary cannot or will not do its job of applying the law to both private parties and the state, the court of public opinion is the only one in which any semblance of justice can be done, and my worries about it may seem out of place. And yet they are not. Hearsay is not evidence; passion is not expertise; suspicion is not proof. Natural justice does not prevail on microblogs. Those whom public opinion accuses stand little chance of defence. The court of public opinion will do justice in some cases, but is bound to err in others. This is not to defend any of the Chinese officials – at the very least, they are helping maintain a system of brutal repression, and many of them are personally responsible for egregious abuses. But, while the court of public opinion is better than no court at all, it is no substitute for a real justice system.

The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.