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«Ponnuru’s post on The Corner today complains that I “sidestep[ed] the issue of scholarly misconduct.” My post had nothing to do with the ...»

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Ponnuru’s post on The Corner today complains that I “sidestep[ed] the issue of scholarly

misconduct.” My post had nothing to do with the substance of Ponnuru’s National Review piece

– rather, I said that I thought that the whole enterprise was silly. There was an indirect

substantive critique, however. The unstated upshot of my view was that the entire subject was so

trivial that, essentially by definition, it couldn’t amount to scholarly misconduct.

But Ponnuru’s vituperative post in response to mine inspired me to take a deeper look at the allegations, which I’ve now done. He called me “slippery and dishonest” and accused me avoiding the actual issue. I couldn’t possibly care less what he thinks of me, but those claims inevitably – and seemingly intentionally – were going to invite scrutiny of the substance of what he had written. So I got a copy of the relevant sections of Tribe’s briefs in Richmond Newspapers, which are available here: http://goldsteinhowe.com/blog/files/RNBriefs.pdf, and

Tribe’s Green Bag article, which is available here:

http://goldsteinhowe.com/blog/files/GreenBagPDF.pdf. (Disclosure: I got the Green Bag article by calling Tribe’s office and asking someone on his staff to fax or e-mail it to me because I don’t have a copy and couldn’t find it on-line. I’ve still not spoken to Tribe about this; he holds the copyright on the piece, but I figure this is fair use.) In the paragraphs that follow, I lay out Ponnuru’s claim and why I think it’s quite wrong. I also think this whole endeavor will reinforce my original sense that this is entirely silly. Tribe is perfectly capable of defending himself, and some posts have indicated that he intends to do so, but Ponnuru has drawn my interest. So – and I ask your indulgence because I’ve just written this on the fly without editing it or having anyone else review it for style – here we go....

Ponnuru’s position is that Tribe “committed precisely the offense that he identified as ‘the cardinal sin for any scholar’” – namely, he “present[ed] ‘fantasy’ as ‘fact.’” The misrepresentation is said to occur in the Green Bag piece, which is where I start.

For completeness, I’m going to quote in full each reference by Tribe to his use of the Ninth

Amendment in the Green Bag piece. Tribe introduces the Ninth Amendment as follows:

[T]he First Amendment didn’t completely suffice [in Richmond Newspapers] – unless one treated it as a very broad structural guarantee of access to information in an open society, a guarantee not enumerated anywhere in the Bill of Rights, but one reinforced by the Ninth Amendment’s mandate that the Constitution’s “enumeration... of certain rights, shall not be construed to deny or disparage others retained by the people.” Note how Tribe frames his view in the case: that the Ninth Amendment reinforces the First Amendment, as opposed to serving as a stand-alone source of constitutional authority. But note as well that, for all of Ponnuru’s quotes of Tribe, he omits the one that actually sets out the substance of his argument.

Here are the next two paragraphs:

But the Ninth Amendment, I learned as I briefed Richmond Newspapers and as I found myself being lobbied hard by the pillars of the media bar, was barely to be mentioned in polite society, much less was it ready for prime time.

Who was I, an utter novice at Supreme Court advocacy, to buck the conventional wisdom on something so basic? Well, I was a lawyer who’d taken a case because he believed in it, who’d been teaching and would teach generations more of law students about the kinds of questions the case raised, who’d gone on record a couple of years earlier in a treatise, American Constitutional Law (1st ed. Foundation Press, N.Y. 1978) (now in its third edition as of 2000), on most of the issues the case touched, and who cared a lot more about keeping faith with what he’d feel bound to write and teach in years to come, and with how he thought the Court should be approached, than with what the Pooh-Bahs of the establishment thought of him. That’s who I was. And am. So the Ninth Amendment argument stayed in. And, I’m happy to report, in the end it hit its target.

So Tribe has said that the Ninth Amendment argument “stayed in” the case, despite strong urging from media lawyers.

Tribe next mentions his use of the Ninth Amendment after describing the death of his father:

In none of the thirty or so Supreme Court cases that I’ve argued since Richmond Newspapers have I passed the days leading up to oral argument in anything like the unfocused, disoriented frame of mind in which I felt those days and nights slip by. In retrospect, I imagine I must have concentrated somehow on the details of the case, the themes I wanted to stress, the major problems I saw in the position I thought the Court should take. I know that urgent phone calls imploring me, above all else, to forget that “crazy Ninth Amendment argument,” didn’t even scratch the surface of what I was feeling. Literally all I recall about writing the reply brief – which ended (I’ve just reread it) with a call upon the Court to vindicate “a tradition … demonstrably central to the public awareness and institutional accountability that define our form of government” – is that I refused to use that brief as a vehicle for backing away from the Ninth Amendment, whose affirmation of rights unwritten and unseen I think I was almost beginning to identify, in some then still unconscious way, with the mystery of why I’d fortunately agreed to call my father the night before his anniversary; of why I’d felt the knock of doom before our phone had rung; and, above all, of what I’d seen streaking across the predawn sky out of the airplane window.

So Tribe has said that in writing his reply brief he rejected calls to back away from the Ninth Amendment. That means, necessarily, that the Ninth Amendment argument must have been made in the opening brief, something that he confirms in the next quote.

Tribe’s final reference to the Ninth Amendment refers back:

Reflecting now on my resolute commitment to arguing the case in Ninth Amendment terms – and thus in terms of the Constitution’s “tacit postulates,” which my opening brief had reminded then-Justice Rehnquist and Chief Justice Burger that they had only recently described as no less “engrained in the fabric of the document [than] its express provisions,” Nevada v. Hall, 440 U.S. 410, 433 (1979) (dissenting opinion) – I think my grief may have permitted me to see a bit more clearly through the fog of superficial arguments and objections and may have steeled me against the kinds of eleventh-hour distractions and importunings that co-counsel, meaning to be helpful, are prone to inject as a Supreme Court argument nears.

So Tribe has said that he was committed to the Ninth Amendment argument in his opening brief despite the urging of other lawyers.

In the entire piece, those are all the references by Tribe to his reliance on the Ninth Amendment.

Ponnuru’s piece gives a quite different impression. Ponnuru says that “Tribe’s essay casts himself as a kind of hero for breathing life into the amendment” and (sticking with that theme) “a forgotten hero of the Ninth Amendment.” Judge for yourself. I don’t see it, which reinforces my sense that even if Ponnuru had a substantive point (which he doesn’t), he’s just trying to blow it miles out of reasonable proportion.

Ponnuru now ostensibly turns to substance. He says that “the record in front of the Supreme Court does not corroborate important parts of Tribe’s story. He didn’t argue his case in Ninth Amendment terms. Other parties in the case did, but not Tribe.” Ponnuru sets this argument up by misstating what Tribe said. Ponnuru introduces the Ninth

Amendment issue into his piece with this paragraph:

Tribe argued [Richmond Newspapers] just two weeks after his father died. That fact, his essay explains, emboldened him to do something daring: to invoke the Ninth Amendment to the Constitution.

As described above, that is doubly inaccurate. First, Tribe never said that his father inspired that argument. To the contrary, he said that the reason the Ninth Amendment argument stayed in was that “I was a lawyer who’d taken a case because he believed in it, who’d been teaching and would teach generations more of law students about the kinds of questions the case raised,” etc., etc.

Second, Tribe did not adopt the Ninth Amendment argument upon his father’s death. To the contrary, he made quite clear that the argument was in his opening brief, then refused to abandon it in the reply. Tribe wrote the reply brief after his father’s death, which means that the opening brief was written months beforehand.

That misstatement by Ponnuru has real consequences. Any reader who has made it thus far into Ponnuru’s piece is paying attention to the events as Ponnuru claims Tribe represented them unfolding. So the reader is looking for proof that Tribe raised the Ninth Amendment argument after his father’s death in the reply and the oral argument. Ponnuru then point his readers to the missing argument that Tribe never claimed was there.

So now we come to the blow-by-blow of Ponnuru’s analysis. In order, he contends....

First, “[t]he Ninth Amendment did not appear in the [jurisdictional] statement Tribe filed asking the Supreme Court to review the case.” Tribe never said otherwise – he said it was in the opening brief. But Ponnuru implies that Tribe representing something about the jurisdictional statement; otherwise, why is Ponnuru mentioning it?

Second, Ponnuru contends that Tribe only made passing references to the Ninth Amendment in

the opening brief. He contends:

Tribe’s brief on the merits of the case did refer to the Ninth Amendment – but the references hardly justify the billing Tribe gave them two decades later. Tribe opened and closed a seven-page section of his 72-page brief with references to the amendment. But in between he mostly discussed Fourteenth Amendment precedents. There was no discussion of the history of the Ninth Amendment – nothing about how James Madison viewed it, nothing about the Court’s prior treatment of it. The previous case in which the Ninth Amendment had figured most prominently was Griswold v. Connecticut (1965), in which the Court had struck down a law against contraception. Tribe didn't mention it.

The Ninth Amendment was a mere rhetorical flourish in this brief. The State of Virginia felt no need to include any Ninth Amendment analysis in its own brief, since there was nothing much to respond to.

The first part of this paragraph is just misleading. The second part of it just represents Ponnuru’s view that he knows better than Tribe how to argue a constitutional law case in the Supreme Court. If you believe that, then by nature you’re going to believe inconsolably that Ponnuru is right about all of this and Tribe is wrong. (Tribe did win the case, incidentally.) What, you might wonder if you’ve made the miscalculation of reading this far, was the “sevenpage section” of the brief? It was entirely devoted to the Ninth Amendment – not merely a section with opening and closing “references.” (As noted, you can open the pdf of the brief above and read along.) It was entitled, “Even if Not Otherwise Enumerated, the Right is Implicit in Ordered Liberty and Is Among the Rights or Privileges ‘Retained by the People.’” That is, of course, a quote from the Ninth Amendment. The discussion at the beginning and end explain that this section is going to demonstrate that the appellants are pursuing a valid unenumerated right. All that comes in between goes to that point. For people who’ve actually written briefs, that seems to me to be an inescapable conclusion. To say as Ponnuru does that the Ninth Amendment was a mere rhetorical flourish is just inexplicably wrong. There are pages and pages of rhetoric that have the single, obvious purpose of establishing that the plaintiffs are protected by the Ninth Amendment.

In reading the section of Tribe’s brief, for example, I find it illustrative that Ponnuru highlights that Tribe doesn’t again return to the phrase Ninth Amendment – it is after all the name of the section of the brief, so Tribe’s reader knows what is going on – but Ponnuru omits Tribe’s repeated, clear invocations of the fact that his theme is that the right need not be located anywhere else in the Bill of Rights. He draws comparisons to the “unenumerated right to vote in state elections” and the “unenumerated right to proof beyond a reasonable doubt,” and he explains that there was “no need ‘to ascribe the source of this right... to a particular constitutional provision.’” But you don’t get any of that from Ponnuru’s piece. And here you don’t have to take my word for it or Ponnuru’s; read the pdf.

Third, Ponnuru indicates that Tribe’s statements about his reply brief “not backing away” from the Ninth Amendment and that “he was under great pressure to do so” are inaccurate because – on Ponnuru’s premise – “there wasn’t much to back away from, so it’s hard to see why anyone would have thus importuned him.” That premise is false for the reasons I just described, so Ponnuru’s suggestion that Tribe is just lying about what other lawyers urged him to do, is built on a falsehood.

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