EDITOR’S NOTE: This exchange appears in the April 11, 2005, issue of National Review.
Defense and Prosecution
Ramesh Ponnuru accuses me of presenting “fantasy as fact” (“How to be a Hero of Liberty,” March 14), but succeeds only in displaying National Review’s lack of journalistic scruple.
I have written much about how the Ninth Amendment serves not as a separate source of rights but as a reminder that enumerated rights like “freedom of speech” may reach beyond their literal terms and that some fundamental rights are not enumerated at all but must be inferred from the Constitution’s structure, history, and “tacit postulates.” Ponnuru doesn’t attack those writings on the merits. Instead, he undertakes a virtual grave-robbing exercise, excavating an eleven-page memoir from Green Bag in which I recall, in a voice deliberately “personal, not professional or academic or legal,” my struggle to cope with my father’s sudden death a day after I called home to wish him and my mother a happy 40th anniversary.
In that memoir, I reflect on the long path that “sweet and gentle man” had taken from his birthplace in Byelorussia in 1902: from his becoming a U.S. citizen in California, to his internment as an American in a Japanese concentration camp near Shanghai in World War II, to his death in 1980 just days before what was to be my first Supreme Court argument, in a case (Richmond Newspapers) that became the first to uphold the public’s right to attend criminal trials.
My essay was in essence a family scrapbook, complete with baby pictures and photos of my father–not a tract on the trajectory of legal doctrine. It spoke not of the dynamics of the Court or the psychology of its justices but of “the emotional equation I felt as I stood” before them to argue that case “so soon after seeing my father’s body” in an open casket–an equation in which “the murdered man’s wife and kids” were “among the victims of the state’s decision to conduct” the trial of the accused murderer “outside their gaze.” For them, I wrote, “seeing the processes of justice” come to closure around their father’s slaying “might in some way have been like what I needed to see before the casket closed.”
That emotional connection impelled me to press, both orally and in my reply brief, the argument that even if the public’s right to see justice done was not protected, in so many words, by the First Amendment’s “freedom of speech” or by the Sixth Amendment’s right “of the accused” to a “public trial,” the “tacit postulates” of our system protected that right. The Ninth Amendment is among the reminders that those postulates count every bit as much as the text itself.
Ponnuru, missing the point, fastens on how frequently I used the words “Ninth Amendment.” He condemns my memoir as “self-serving fantasy” upon finding those words mentioned in my opening and reply briefs, but “not even once” in my oral argument. But the memoir’s detailed description of that argument nowhere implies I had invoked whatever genie he wrongly supposes those words would have unleashed. Ponnuru even insinuates that I wrote my memoir to inflate my “fame” by claiming credit for persuading the Court to mention the Ninth Amendment. I made no such claim. The amendment, part of our Constitution since 1791, was hardly my discovery!
He then tries to make that (non-existent) boast seem even sillier by insisting that the “Ninth Amendment argument” provided only a “rhetorical flourish” in my brief. In fact, it occupied seven pages, in a section whose title quoted the amendment’s text but whose burden was that even precedents not mentioning the amendment, involving “unenumerated rights” such as voting, travel, and proof beyond a reasonable doubt, support a mode of analysis that covers the public’s right of access to criminal trials.
Responding tit-for-tat to each of Ponnuru’s distortions is rendered unnecessary by scotusblog.com/movabletype/archives/Ponnuru.pdf, a devastating, line-by-line demonstration that his piece, published online weeks before the print version, was a pastiche of misstatements. It remains only to ask readers of this once discerning if ideological magazine to reflect on its decision to reprint so misinformed an attack on my character despite that intervening demonstration.
Laurence H. Tribe
RAMESH PONNURU REPLIES: Professor Tribe closes his letter with a bizarre allegation. He claims my article appeared first online and was then “devastatingly” refuted, and that NR reprinted it in the magazine after the refutation. These claims are false. My article appeared in an issue that went to the printer on Feb. 23. The pages were faxed to Tribe on Feb. 24, and National Review Online ran the article on Feb. 25. The attempted refutation, written by Tribe’s associate Tom Goldstein, appeared online in the first week of March.
Not that it matters. Goldstein has not refuted me, although he has so far spent 17 pages trying. Nor has Tribe here.
My article reported that Tribe, in a 2003 essay, had misrepresented his conduct during a 1980 Supreme Court case. He depicted himself as having made a brave Ninth Amendment argument even though he faced strong pressure from the legal establishment not to do so. The evidence failed to support this self-portrait. Other lawyers involved in the case pressed the Ninth Amendment argument more forcefully than he did.
Tribe and his defenders attack my characterization of Tribe’s conduct both in 1980 and in 2003. They claim that his essay did not present him as making a strong Ninth Amendment argument, but that as it happens he did make one.
Tribe’s essay concerned how his father’s death affected how he argued the case. His letter goes over one effect that he discussed there. Seeing his father’s body in an open casket, he explained, helped him understand how being able to see a murder trial would help the murder victim’s family. My article mentioned that passage of his essay. But it also mentioned another passage, which Tribe now conveniently skips over.
In that passage, Tribe explained that his grief permitted him to “see a bit more clearly through the fog of superficial arguments and objections”; “steeled” him against “eleventh-hour distractions and importunings” from co-counsel; and thus reinforced his “resolute commitment to arguing the case in Ninth Amendment terms.” (He already had this commitment because, as he informed us in his essay, he is a man of deep principle.)
The theme of Tribe’s putatively courageous, steely determination to argue his case in Ninth Amendment terms was not incidental to the essay. He said he would not “pull [his] punches” and that he would not “back away” from the amendment. He referred to what he had “dared to say” in the courtroom–and the only thing the essay presented as daring was the Ninth Amendment argument. The references to Tribe’s daring, resoluteness, etc., make no sense in any other context (a point Goldstein ignores).
Turning to Tribe’s briefs: Even if we grant Tribe’s claim that his invocation of the Ninth Amendment on the merits was more than the mere “rhetorical flourish” I said it was, it is undeniably true (and damning to Tribe’s self-depiction) that other parties’ briefs made more vigorous Ninth Amendment arguments. That suggests Tribe fibbed when he insisted that making his more timid one required resisting massive pressure. Tribe’s claim that he bravely refused to back off this argument in his reply brief cannot be squared with the fact that opposing counsel had not bothered to attack the argument to begin with.
It also remains true that Tribe said nothing daring in front of the Supreme Court. I noted that Tribe incorrectly attributed to Chief Justice Burger questions that were actually asked by other justices at the end of the oral argument. Goldstein concedes that Tribe’s account is mistaken and confused, and identifies no errors in my own account. But he accuses me of “misdirection.” (He says I implied that nobody had kept Tribe at the podium for several overtime minutes; this is untrue.) And he says that Tribe’s mistakes were honest. Maybe so: It is clear that Tribe’s memory of the events of late February and early March 2005 is far from impeccable. But it’s funny how Tribe’s mistakes work in his favor. The misattributions make Tribe’s story about how Burger was asking for his “help” in sketching his opinion seem credible. Whether this story resulted from deliberate embellishment or the tricks of memory, it remains, as I called it, a self-serving fantasy.
Any reasonable reader who first read Tribe’s essay and then read my article would be surprised to learn, in the latter, that Tribe did not mention the Ninth Amendment at oral argument, and that several friend-of-the-court briefs by other lawyers relied more heavily on it than his own did. The essay suggests the opposite.
Some commentators argue that even if Tribe misrepresented his record, his offense was minor. While I do not think that it was trivial, I have never suggested it was a firing offense (or even the worst offense Tribe has committed). My article did not conclude with any call for censure. I merely noted that Tribe’s conduct violated his self-proclaimed standards, announced when he opined in another controversy that the “cardinal sin for any scholar” was to present “as fact what was, in truth, fantasy.” And I suggested that it was “sad and curious” that a professor and litigator as accomplished as Tribe would tell tall tales.
It is interesting that Tribe does not take the acknowledge-but-minimize tack. It’s as though he cannot bring himself to admit that he has done anything wrong, however arguably minor. As Alan Dershowitz commented in 1992, during another controversy involving Tribe, “This whole thing shows one of Larry’s problems, which is speaking out of both sides of his mouth. . . . ‘I didn’t say that, and if I said it I didn’t mean it’: that’s the sort of thing you get from him. . . . In this matter, he should have been big enough to say he screwed up and let it go at that. Instead, he has to make all his positions come out right.”