The Unappreciated East Pediment
Since Miers’s nomination has focused the attention of the blogosphere on the Supreme Court, I figured that now would be a good time to discuss the unappreciated east pediment of the Supreme Court building. The lion’s share of the pedimentary attention at the Court goes to the west pediment. This makes sense, of course, since the building faces west (like the Capitol it has its back to Europe), but I think that it has led to an undue focus on the west pediment’s inscription: “Equal Justice Under Law.” Don’t get me wrong. I am all for equal justice under the law, but I think it is unfortunate this is the particular legal maxim-engraved-in-marble that has become so exclusively adopted as an icon of our law. I think that we would do well to pay more attention to the inscription on the east pediment, which reads “Justice the Guardian of Liberty.”
“Equal Justice Under Law,” it seems to me, is essentially a public-law message. Justice is something that comes down from above on to us, and our marble-inscribed aspiration is that when the ton of bricks falls it will fall without regard to race, religion, or creed. This is a noble ideal to be sure, but it focuses our attention on the law as a regulator. The basic public-law orientation of the west pediment’s inscription follows the 20th-century legal academy’s valorization of public law. Virtually all law professors seem to secretly want to teach constitutional law, and as anyone who has gone on the AALS meat market having listed “administrative law and civil rights law” as their primary interests can attest, the legal intellectuals churned out by our law schools tend to stampede in tightly concentrated masses in that direction.
“Justice the Guardian of Liberty,” on the other hand, is an essentially private law message. Justice is something that facilitates private ordering, and our marble-inscribed aspiration is that the law constitutes a space in which we freely and justly work out our own lives. There was a time, of course, when the academic valorization was reversed, and private law ruled the intellectual roost. The opening debates around which modern American legal education coalesced were essentially private law disputes: Langdell and Holmes on contract law, Brandies on the right to privacy (initially a private cause of action not a public right against the government), etc. By the time the Court’s building was finally completed in the 1930s, however, public law was firmly in the intellectual saddle and private law was relegated to the indignity of the European-facing pediment.
Listening to the arguments about Miers’s nomination and before that the debates over Roberts, I have been struck by how intellectually exhausted our public discussion of constitutional law has become. This is not to suggest that that the discussion is unimportant, or to argue that those who spend their lives in constitutional law lack intellectual ability, imagination, and even — occasionally — insight. But the debates strike me as increasingly stylized and stale. Furthermore, in a world of global markets and legal transactions, the debates of American public law are becoming increasingly parochial. While the constitutional law mandarins debate the propriety of cf. citations to foreign law, private law straddles the globe, and webs of contracts and private ordering weave from nation to nation. Perhaps the east pediment will get the last laugh in the end.