Jeffrey Toobin Offers a Grownup Perspective on Constitutional Law
The US Supreme Court (cc photo by laura padgett)
I agree with Scott Lemieux that it’s very nice to see Jeffrey Toobin able to offer an adult view of how constitutional law works in a mainstream U.S. publication:
In her opening statement before the Senate Judiciary Committee last week, Sonia Sotomayor said that she wanted to clear up some questions about her views. “In the past month, many senators have asked me about my judicial philosophy,” she said. “Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law.” Coming from a jurist of such distinction, this was a disappointing answer. Like much of her testimony, it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.
In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.
I don’t think I would say that “there is no law” in those kind of situations. Rather, I think the thing to say is that people’s opinions about what the law is are going to be irreducibly bound up with their opinions about larger social, moral, and political issues. People reach different conclusions, in other words, for reasons other than technical incompetence or corruption. Unless you think that ethical issues in general don’t have correct answers, this doesn’t mean that hard legal questions have no correct answers. It just means that on hard legal issues, like on hard ethical issues, we can’t expect convergence on a single result and it would be informative to have people say something broader about the kind of values they bring to the table.
That said, an aspiring justice needs to play the game according to the rules as written. Unfortunately, the way our current set of rules works, the hearing process tends to be a bit of a tawdry farce.
30 Responses to “Jeffrey Toobin Offers a Grownup Perspective on Constitutional Law”
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July 28th, 2009 at 2:24 pm
I doubt Sonia is going to be 100% faithful to the current law when she assumes the seat on the SOC.
It’s just something to say in front of these hostile Republican senators.
Like Scalia and others, they will adjust as they see fit. Nothing new.
July 28th, 2009 at 2:30 pm
“When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved.”
I’m curious as to what Toobin would call the equal protection clause of the 14th Amendment? Or the provisions of the 1964 Civil Rights Act? Merely suggestions made by a bunch of elected officials who constitute the other 2/3s of the federal government that should have no bearing on whether or not it is “legal” for a university official to discriminate against someone because of that person’s race?
Seems like a completely nonsensical response to me. He says that there is no law because he doesn’t like the result, i.e., the government cannot discrimination against anyone based on race that the law as written would compel a honest judge to reach.
July 28th, 2009 at 2:40 pm
It is not so much that there is no law as that the law which exists in many contentious cases is quite vague (particularly, but not exclusively, in Constitutional Law). So, it is in the necessary step of interpreting and applying those vague laws to particular matters that the courts end up with a lot of discretion, and you don’t need to be a hardcore legal realist to acknowledge at least that much. So it is not so much that Sotomayor’s answers are nonsensical per se, as that her answers say less than what a lot of people would like to think.
And for the most part Toobin was accurately describing this situation–I just think he let his rhetoric get away from him.
July 28th, 2009 at 2:52 pm
Right, except its not that simple. This vagueness applies to situations were the progress of the modern world creates a problem that the Constitution did not directly foresee, and justices have to decide whats the best historical analogy (and thus which precedents should influence) and what is most true to the spirit of the constitution…here is where the politics comes in; and really there is no way politics could or should be kept out.
On other other hand there are situations were some people have a political want that is not being met by the democratic process, so they try to convert that want into a *positive right* that is granted by the constitution…and sometimes justices, letting their political opinions get the best of them, grant these dubious rights with tortured mumblings about “penumbras, formed by emanations” or naked partisan hackery like “hey, different ways of counting votes is unconstitutional…..in only this specific case so this does not count as precedent!” This is bad.
Its true that sometimes its hard to differentiate between the two situations. But and good, honest justices can differ on what is what. But the point is that you want to weed out hacks.
July 28th, 2009 at 2:53 pm
Chico pretends to be a lawyer but can’t understand Toobin’s point unless it is spelled out for him in very small words. But you can’t really expect much from an apologist for the right-wing thugs that gave us Bush v. Gore.
July 28th, 2009 at 2:59 pm
Aha explained it well, I think.
It’s fine to recognize that judges will inevitably be influenced by their personal biases when interpreting vague statutes or Constitutional provisions. But Toobin makes it sound like he’s not just recognizing a fact of human nature, but rather stating that “making law” is what the Supreme Court is supposed to do. That’s just completely contrary to how our Constitution is set up, and it’s frustrating that someone like Toobin, who should know better, says otherwise.
July 28th, 2009 at 3:14 pm
“Aha” must be correct in claiming that evolving public opinion as expressed in the viewpoints of senior judges, influences decision-making in a participatory democracy, otherwise your world will become what the Taliban aspires too. Why is it so hard for Americans to see something so obvious?!
July 28th, 2009 at 3:30 pm
A boring mainstream judge got exactly ONE Republican vote on the Judiciary Committee. While I fully endorse the right of Senators to vote against judicial nominees for candidly-expressed ideological differences, that doesn’t mean routinely voting against just anyone merely because you, or a President you approve of, would not nominate that candidate. Boring, mainstream appointments of either party ought, ordinarily, to be confirmed with at least a substantial minority, and usually a majority, of the other side’s votes. If a boring, mainstream judge like Sotomayor gets so little bipartisan support, Obama may as well, if so inclined, nominate the liberal versions of Scalia or Bork — if such exist — and cram them down the Republicans’ throats.
July 28th, 2009 at 3:38 pm
If the votes of the opposition party aren’t actually necessary for confirmation, I personally think they should feel free to vote however they feel. Actually blocking a nomination, however, should only occur if there is a sincere belief the President could and would nominate someone better. In other words, no obstruction just for obstruction sake.
July 28th, 2009 at 3:42 pm
A grownup view- do you think you could be any more condescending? The Very Serious Person strikes again!
Forget about confirmation hearings- what about the so-called “judicial opinions” claiming to interpret the “law?” Each side usually argues that its interpretation is superior; precisely because issues reaching the Supreme Court usually have non-obvious answers, both sides will often engage in very rigorous reasoning and analysis to demonstrate the superiority of their judgment. If interpretation is not just difficult, but actually impossible, the the Court’s claim to be interpreting the Constitution is itself a fraud. In that case it should have no power, since logically such power is it has derives from its duty to deliver judgment.
July 28th, 2009 at 3:47 pm
Also, vagueness frequently derives from Constitutional doctrine rather than the Constitution itself; in other words, Judges’ interpretations create vagueness. Think, for instance, “no law respecting the establishment of religion” versus the nebulous “Separation of Church and State.”
July 28th, 2009 at 4:14 pm
Each of the parties is asserting what the law IS, not what it should be. It is the parties who except in extreme cases dictate the parameters of the decision. They are asking the judge to say, yes, considering all the possible bases for interpreting what the Constitution says, this IS the law.
It is not a matter of pulling law out of the air. Indeed, it is the need for a “case or controversy,” with one side proposing an interpretation of the law grounded in language, precedent, logic and the kitchen sink, which makes the concept of “judicial activism” a silly construct. Supreme Court justices are not driving around the country looking for cases they can decide the way they want to. The only possible validity to the term is to describe someone who routinely overturns precedent to reach a politically-favored outcome, but right-wing justices seem to do that more than anyone.
July 28th, 2009 at 4:20 pm
Aaron: It’s hardly unambiguous. What does it mean by establishment? Does it mean Congress shall make no law establishing a religion, or does it mean that they shall make no law which has to do with “the establishment” that already exists? If the former, what constitutes establishing a religion? Do you have to go so far as to create a Church of America led by the Archbishop of Georgetown, or is it sufficient to merely give support to a preexisting church? And if the latter, how much support are we talking about? What qualifies something as “religion?” Is it metaphysical, or moral, or ritualistic? If a law does not itself establish a religion, but gives sufficient power to the executive that they then go on to establish a religion, does that render the original law unconstitutional, or the act itself, or both? Does this prohibition imply that there is a privilege of citizens of the United States to not having governments establish churches, and thus have it extend to the states via the 14th amendment?
July 28th, 2009 at 4:24 pm
You have to feel sorry for Sotomayor. She spent all those years giving speeches to boring little Diversity Awareness Seminars saying what she really believes. Finally, she gets the big stage and Axelrod tells her to shut up, hunker down, and lie. It worked for Obama and it’s going to work for you.
But, now, she’s going to endure years of listening to Scalia stick the knife in her ribs by quoting her Senate testimony back to her — “We all know Madame Justice’s views on this subject; as she told Senator Kyl, etc etc,” while Alito snickers, and Thomas does that thing where he just stares at you like you are the most boring waste of time ever.
July 28th, 2009 at 4:38 pm
…right up until Thomas has his heart attack, and Obama appoints a fifth liberal judge.
Poor, poor Sonia Sotomayor. You have to feel sorry for her, having to wait a couple of years for dicks like Scalia and Thomas to become irrelevant.
Think she’ll sign as the Wise Latina when she’s authoring 5-4 decisions, Sailer?
July 28th, 2009 at 4:39 pm
Steve Sailer, that makes no sense whatever. Do you think Roberts has to hear about his disingenuous testimony when he’s on the bench? As for Thomas, I think the problem is that he finds law to be the most boring waste of time ever.
July 28th, 2009 at 4:44 pm
…and the wonderful irony is that the blatherings of people like Steve Sailer, and others who share his view of racial issues (ie, most Republicans) during the Sonia Sotomayor confirmation process will play a meaningful role in ensuring that a Democrat fills the next few Supreme Court vacancies.
July 28th, 2009 at 4:59 pm
Also, vagueness frequently derives from Constitutional doctrine rather than the Constitution itself; in other words, Judges’ interpretations create vagueness.
That is really pretty much the opposite of the case. The text of the Constitution is really incredibly vague in many key passages (what is meant by “necessary and proper”? “free exercise [of religion]“? “unreasonable searches and seizures”? “due process of law”? “cruel and unusual punishments”? “privileges or immunities”? “equal protection”? and on and on). Faced with this situation, from the outset the federal courts have more often than not been trying to impose greater order and predictability into Constitutional Law through doctrine. Of course that isn’t always what happens in individual cases, but that is certainly the overall trend.
Think, for instance, “no law respecting the establishment of religion” versus the nebulous “Separation of Church and State.”
That latter phrase isn’t a constitutional doctrine. The actual Establishment Clause doctrine is fairly complex and again tries to impose some sort of order and predictability on this otherwise vague phrase (and vague it is, particularly when you consider the many possible meanings of “to establish”).
July 28th, 2009 at 5:00 pm
Urban legend: If 12 was a response to me (or even if not) then I should have been clearer; by “each side” I meant the majority and the dissenters. In any case I don’t think I really disagree with anything you say, except that 1) I think overturning precedent when you think it is inconsistent with the Constitution is legitimate (it would be unwise to do it lightly, which is why the likes of Rehnquist rarely do it); and 2) Attempts to read, as Aha says it 4, the “spirit of the Constitution” are invitations to vagueness which gives Justices more power than their natural power of judgment flowing from “Cases and Controversies” entitles them.
Anonymous: While you raise some interesting hypotheticals, and I am not suggesting that “Establishment of Religion” is self-interpreting. However, you’re not giving us anything concrete to work with; for instance, I’m not quite sure how a purely metaphysical system could be established by the state without involving some ritual (if we’re talking about French Revolution-style worship of the goddess of reason, that would be unconstitutional, don’t you think?)
Meanwhile, since “Separation of Church and State” took hold, we haven’t really had clarity on the subject, especially since government’s reach extends far enough that keeping it completely separate from religion is going to at some point threaten the free exercise of religion (do conscious exemptions favor religion or respect free exercise or both? What about subsidies that are neutrally available? Not an establishment of a state church, but not “separation” either.)
July 28th, 2009 at 5:11 pm
Have you ever seen a conservative declare that the plain, unambiguous, obvious, only-good-faith reading of the Constitution’s language forbids the adoption of a policy conservatives like?
Even once? “Aw, geez, look at that! Such-and-such would be a really effective tactic against teh Muslims in the War on Terror, but the plain meaning of the Constitution forbids it! Oh, well, onto Plan B.”
I haven’t. Odd that it keeps working out that way.
July 28th, 2009 at 6:27 pm
This is much better than what Toobin said. Toobin is being “grown-up” in the same way that Sotomayor has been grown-up–by making glib comments about appellate courts making law and then making equally simplistic statements about “fidelity to the law” in her Senate testimony. “We legal experts know that judges have to make policy, but we’ll pat citizens on the head and tell them the opposite because they can’t handle the truth.” The take-home point is that she’s yet to show that she’s even thought about what judges should be doing in hard cases–making law, championing rights from the spirit of the law, applying moral or natural law principles, or what?
Of all the nominees who could have actually engaged in a real discussion about the law, it was Sotomayor. She had sixty votes on the Democratic side and a moderate, very defensible record. What she did was either cowardly, or maybe she’s just a really subpar legal thinker.
July 28th, 2009 at 6:35 pm
Joe from Lowell: Sure, Andrew Sullivan has done that fairly frequently. There’s a raft of honorable, constitutional conservatives, even if they get utterly drowned out.
July 28th, 2009 at 6:54 pm
“I’m curious as to what Toobin would call the equal protection clause of the 14th Amendment?”
I’m pretty certain he wouldn’t call it what you think it is: an amendment passed to allow totally unexceptional white males to sue because they didn’t get into the premier school of their choice.
“Finally, she gets the big stage and Axelrod tells her to shut up, hunker down, and lie.”
Ah, yes. I do remember John Roberts causing all sorts of buzz with his bold assertions that he was going to wipe his ass with any precedent that hadn’t been established by the Taney court.
July 28th, 2009 at 6:56 pm
tomemos,
If you’re talking about things like internment or racial profiling, Sullivan is against those for moral reasons, even if he acknowledges that they could be effective, so I wouldn’t count them as examples of a conservative finding the Constitution forbidding something he supports.
July 28th, 2009 at 7:03 pm
Conservative strategy has been modified to allow for a face-saving exit, now that they’ve lost the majority and their credibility.
Step 1: Invent absurd position, and assign it to a target. (Sonia Sotomayor thinks court cases should be resolved via Santeria rituals!)
Step 2: Try your darnedest to make it stick. Send out a mailer claiming your target believes that position. (Sonia Sotomayor thinks judicial decisions should be based on Santeria rituals! Also, gay people! Wake up, America!)
Step 3: Target denies attack. (I believe judicial outcomes should be based on the law, not the spray pattern produced by killing a chicken. Are you an idiot?)
Step 4: Shout “Flip-flop!” (You have to feel sorry for Sonia Sotomayor, forced to renounced her Santeria-based judicial philosophy.)
Step 5: Drink brown liquor, congratulate self for being so awesome, endorse checks received from mailer sent out in Step 2.
July 28th, 2009 at 7:35 pm
I’m pretty certain he wouldn’t call it what you think it is: an amendment passed to allow totally unexceptional white males to sue because they didn’t get into the premier school of their choice.
No, he’s got a point – I’m pretty sure that’s how John Bingham described it on the House floor.
July 28th, 2009 at 8:26 pm
In response to Jonny Scrum-half’s comment “But Toobin makes it sound like he’s not just recognizing a fact of human nature, but rather stating that “making law” is what the Supreme Court is supposed to do. That’s just completely contrary to how our Constitution is set up, and it’s frustrating that someone like Toobin, who should know better, says otherwise.”
In fact, it’s not contrary to how our Constitution is set up ! The federal courts (including SCOTUS) are common law courts, which make law (albeit case law, not statutes)! Of course, when the demagogues spout off about judicial legislation, they actually are are whining that the court invalidated an unconstitutional statute. Such invalidation in fact, is not “judicial legislation” but instead enforcement of the Constitution.
The Constitution articulates various policies and objectives. When a case reveals conflicts between those policies or an ambiguity in those policies, the federal judiciary resolve such conflicts/ambiguities in their role as common law judges.
Judges are “making policy” only because they have to resolve conflicts between two different policies — for example, in the Florida Supreme Court’s opinion in Bush v. Gore, they had to decide between a statutory section that said to count the votes quickly and another section that said to count all votes accurately. Those sections generally shouldn’t conflict but that election presented a situation where those two directives conflicted because an accurate count would require several weeks. The statute did not state how to reconcile this conflict, so the Florida court had to decide which policy was more important. The Florida Supreme Court chose accuracy but SCOTUS chose quickness.
July 28th, 2009 at 11:07 pm
Re: (Sonia Sotomayor thinks court cases should be resolved via Santeria rituals!)
Actually I’d much rather Sonia Sotomayor made rulings based on Santeria rituals than on an exegesis of pro-choice feminist philosophers. Santeria is actually intellectually and morally respectable.
July 28th, 2009 at 11:49 pm
Aaron —
No, I was rally commenting on Toobin’s comment that there is no law in certain disputes. I disagree. The court must side either with the petitioner’s claim or the respondent’s. Most of the time it must accept the reasoning of one or the other as to what the law is. If it finds a different analysis, it still must decide — one party wins, the other loses — and cannot do so saying here’s is what I think the law should be. Nor can it throw up its hands and say, “I can’t decide because there’s no law on the subject, so let’s just say you’re both right.”
I’m not a fan of the “spirit of the law” formula, either. It sounds too much like divining what the drafters “really meant” when you can’t come up with any supporting analysis for the interpretation.
July 29th, 2009 at 11:51 am
Federal courts aren’t really common law courts. There is no separate federal law on torts, breach of contract, etc. If those cases are tried in federal courts, the appropriate state law is applied. They do interpret statutes and the Constitution, and a ‘common law’ develops out of those interpretations.
I think also that there is a distinction between making law and making policy. Courts do make law – anytime they decide a case they are in essence making law. But they don’t, or shouldn’t, make policy, which I would describe as making a decision based on what they think is a good idea, rather than what they think the law is. For example, it may be a good idea to limit campaign contributions and advertising, but that is a different question than rather such limits violate the 1st Amendment.