by Melissa Dizdarevic
Last week, former Acting Solicitor General Neal Katyal visited Fordham Law to give a lecture about Confessions of Error. In particular, he told of his own Confession in the Japanese-American internment case Hirabayashi. Confessions of Error rarely make the news, though, despite the important signals that they send to the public.
Confessions of Error come up in several ways, but basically involve the SG arguing before the Supreme Court that a court decision in favor of the government was wrong, primarily because the government’s position was wrong. Though typically this means lower court decisions that are fairly contemporaneous, it may also occur as it did with the Hirabayashi case, which was decided by the Supreme Court seventy years ago. The decision to confess error cannot come lightly, for many reasons, but also because, Katyal explained, an amicus of the government then argues the government’s position all over again. An SG must be quite sure that the position was indeed wrong.
But what does a Confession of Error really mean? It’s not an apology to the affected parties. Nor is it really a reversal, though in some cases it will remand the decision for re-consideration in light of the SG’s Confession. But it does provide an interesting outlet that otherwise does not exist in our system of law. Since when can a former party go back and say, “I know I won, but I shouldn’t have, here’s what I did wrong, and you should change the decision”? This kind of acknowledgment alone could be a valuable remedy, but it’s something that’s difficult enough to incorporate in our personal lives, let alone in the courts. The existence of a Confession at the highest level and by the government is thus rather impressive, but should it be so limited? Allowing such an outlet at lower levels might send the signal that it’s ok to use and abuse the system and apologize later for any lies or regrets, but it’s power to serve the ends of justice may outweigh even that tangible cost. The Confession could provide the very legal mechanism the system needs to convey a moral stance.
Confessions of Error, however, also serve another remedial purpose, attempting prevention of future wrongs on the part of the government. The Confessions serve as a notice that the government’s conduct was erroneous, staining that behavior for potential future violators that believe that winning the case is everything. In a case like Hirabayashi, which deemed the internment of Japanese-Americans acceptable, the future implications may be even broader. Katyal’s Confession stated that there were material omissions from the government’s Brief that bore on the question of the necessity of the internment. Although this Confession then seems to be limited to its facts, discouraging such governmental misconduct, we can’t ignore the other message it might send regarding, for example, the view of the New York Police Department’s surveillance of Muslims. Katyal, for one, limited the impact of his Confession to the government’s conduct, but that did not seem to settle the question for everyone.
Melissa, thank you for writing about this practice. I was unable to attend the speech, and I found your summary to be very informative. One of the most fundamental concepts that has been drilled into us as law students, from the very first day, is the importance of precedent and stare decisis. While this concept is arguably laudable for the stability which it provides to the legal arena, it can also have the unfortunate effect of allowing a bad principle or a bad decision to continue to perpetuate itself in court decisions, until finally overturned in a landmark decision that sometimes feels as though it has come too late in the game. (I am thinking of cases involving important social policies, such as Brown v. Board or Roe v. Wade). I think that your point in which you praised a confession for its ability to “stain[] that behavior for potential future violators” is perhaps the most important feature of a confession, as it may, especially in more contemporaneous cases, be able to stop a snowball of bad precedent before it goes too far.
One other thing that comes to mind is that confessions, such as landmark cases reversing a public policy, are undeniably and inextricably tied to social norms and ideas. While a confession is unique in that it may represent that Government being progressive to a point where it can change policy, the dependency on normative views as the metric for what is clearly erroneous leads me to have less appreciation for the concept of a SG confession than is commonly recognized.