What Liberals don't get about Judicial Conservatism

While driving from Houston to Chicago this author had occasion to listen to Jeffrey Toobin's recent The Oath, a book about the relationship between the Robert's court and the Obama Administration. CNN watchers may recall Toobin for his legal analysis during the Zimmerman trial; Toobin is also a prolific writer for such publications as The New Yorker. Those familiar with him will know that Toobin is a dyed-in-the-wool liberal, a liberal's liberal. Still, Toobin takes a refreshingly civil and diplomatic tone toward conservatives, unlike the screamers on MSNBC and elsewhere. All the same, Toobin's work does suffer from a common flaw: he can't quite explain the other side's position in a way that would make it seem sensible, (by no means a flaw exclusive to those on the left). Toobin's readers are likely to be overwhelmingly liberal and sympathetic to Toobin's political and legal views; he deprives these readers of a full appreciation for the different legal philosophies in conflict.

Toobin's praise of conservative Justice Anthony Kennedy in relation to Roper v. Simmons, and his criticism of the even more conservative Justice Clarence Thomas in regard to his opinion in Baze v. Rees, exemplifies this flaw. Anthony Kennedy joined the liberal majority in ruling against Missouri, that the execution of juveniles violated the Eighth Amendment prohibition on cruel and unusual punishment, (as judged by the evolved standards of decency of 2005). According to Toobin, Kennedy's contact with foreign jurists influenced this decision. Outside the United States, the legal community views America's use of capital punishment as barbaric; Kennedy seeing himself as part of this larger community saw the execution of juveniles as cruel and unusual based on contemporary norms, a view lauded by Jeffrey Toobin.

By contrast, Toobin heavily criticizes Justice Clarence Thomas for his concurring opinion in Baze vs. Rees, a split decision upholding the use of lethal injection. For the "Originalist" Clarence Thomas, the Eighth Amendment only concerns methods of capital punishment considered torture at the time of ratification. Toobin treats Thomas's concurring opinion as an unintentional reductio ad absurdum of the originalist position. Toobin writes,

Thomas concurred, in an opinion that read like a treatment for a slasher movie. As always, he began by asserting that the relevant constitutional provision must be 'understood in light of the historical practices that led the Framers to include it in the Bill of Rights.' To that end, Thomas surveyed eighteenth-century executions that were, apparently, cruel and unusual even in those days. There was burning at the stake, ''gibbeting' or hanging the condemned in an iron cage so that his body would decompose in public view, and 'public dissection....'

To Toobin, Thomas's Originalism is self-evidently absurd. Toobin misses that the dispute between a "living constitution" and "strict constructionism," as it concerns the eighth amendment is a normative not a factual dispute. Specifically, are we better off when judges interpret the stricture against cruel and unusual punishment as based on contemporary standards, or better off if judges read it more narrowly? Toobin fails to explain to his liberal readership why reasonable people might endorse the more narrow approach. Legal conservatives, such as Thomas, would argue that basing it on contemporary standards usurps democracy. It is the job of the peoples duly-elected representatives to determine what the contemporary standards of decency are.

Cruel and unusual punishment is such a vague term that Justices are forced to make an essentially normative judgment, but most of the time this isn't the case. Jeffrey Toobin, and liberals generally, have certain policy objectives; for example, they want an activist federal government involved with managing the economy, and they want gun control. These objectives require a broad interpretation of the commerce clause, and a rejection of the individual rights position on the second amendment, respectively. But someone could support liberal policy goals, while subscribing to the conservative judicial view. For example, Alan Dershowitz supports gun control while believing that the constitution protects the individual right to keep and bear arms, (he wants to enact gun control through a constitutional amendment). Because Toobin ignores this possibility he leaves readers with the impression that in his words, "Originalism was no more principled or honorable than any other way of interpreting the Constitution. It was, as Heller demonstrated, just another way for Justices to achieve their political goals."

While Toobin deserves praise for writing an otherwise good book, he shouldn't escape criticism for what he fails to do. Toobin can engagingly describe arcane legal minutae, he can lucidly inform his readers about the day to day mechanics of the court, but he can't articulate the conservative judicial view. This failure leaves his readers with the mistaken impression that the decisions of conservative judges have no basis besides their own political biases, which is mistaken. If the conservative legal perspective were so baseless why then would it be, as Toobin describes, ascendant? Too understand this ascendancy you have to at least understand the conservative legal mind, even if you disagree with it.

While driving from Houston to Chicago this author had occasion to listen to Jeffrey Toobin's recent The Oath, a book about the relationship between the Robert's court and the Obama Administration. CNN watchers may recall Toobin for his legal analysis during the Zimmerman trial; Toobin is also a prolific writer for such publications as The New Yorker. Those familiar with him will know that Toobin is a dyed-in-the-wool liberal, a liberal's liberal. Still, Toobin takes a refreshingly civil and diplomatic tone toward conservatives, unlike the screamers on MSNBC and elsewhere. All the same, Toobin's work does suffer from a common flaw: he can't quite explain the other side's position in a way that would make it seem sensible, (by no means a flaw exclusive to those on the left). Toobin's readers are likely to be overwhelmingly liberal and sympathetic to Toobin's political and legal views; he deprives these readers of a full appreciation for the different legal philosophies in conflict.

Toobin's praise of conservative Justice Anthony Kennedy in relation to Roper v. Simmons, and his criticism of the even more conservative Justice Clarence Thomas in regard to his opinion in Baze v. Rees, exemplifies this flaw. Anthony Kennedy joined the liberal majority in ruling against Missouri, that the execution of juveniles violated the Eighth Amendment prohibition on cruel and unusual punishment, (as judged by the evolved standards of decency of 2005). According to Toobin, Kennedy's contact with foreign jurists influenced this decision. Outside the United States, the legal community views America's use of capital punishment as barbaric; Kennedy seeing himself as part of this larger community saw the execution of juveniles as cruel and unusual based on contemporary norms, a view lauded by Jeffrey Toobin.

By contrast, Toobin heavily criticizes Justice Clarence Thomas for his concurring opinion in Baze vs. Rees, a split decision upholding the use of lethal injection. For the "Originalist" Clarence Thomas, the Eighth Amendment only concerns methods of capital punishment considered torture at the time of ratification. Toobin treats Thomas's concurring opinion as an unintentional reductio ad absurdum of the originalist position. Toobin writes,

Thomas concurred, in an opinion that read like a treatment for a slasher movie. As always, he began by asserting that the relevant constitutional provision must be 'understood in light of the historical practices that led the Framers to include it in the Bill of Rights.' To that end, Thomas surveyed eighteenth-century executions that were, apparently, cruel and unusual even in those days. There was burning at the stake, ''gibbeting' or hanging the condemned in an iron cage so that his body would decompose in public view, and 'public dissection....'

To Toobin, Thomas's Originalism is self-evidently absurd. Toobin misses that the dispute between a "living constitution" and "strict constructionism," as it concerns the eighth amendment is a normative not a factual dispute. Specifically, are we better off when judges interpret the stricture against cruel and unusual punishment as based on contemporary standards, or better off if judges read it more narrowly? Toobin fails to explain to his liberal readership why reasonable people might endorse the more narrow approach. Legal conservatives, such as Thomas, would argue that basing it on contemporary standards usurps democracy. It is the job of the peoples duly-elected representatives to determine what the contemporary standards of decency are.

Cruel and unusual punishment is such a vague term that Justices are forced to make an essentially normative judgment, but most of the time this isn't the case. Jeffrey Toobin, and liberals generally, have certain policy objectives; for example, they want an activist federal government involved with managing the economy, and they want gun control. These objectives require a broad interpretation of the commerce clause, and a rejection of the individual rights position on the second amendment, respectively. But someone could support liberal policy goals, while subscribing to the conservative judicial view. For example, Alan Dershowitz supports gun control while believing that the constitution protects the individual right to keep and bear arms, (he wants to enact gun control through a constitutional amendment). Because Toobin ignores this possibility he leaves readers with the impression that in his words, "Originalism was no more principled or honorable than any other way of interpreting the Constitution. It was, as Heller demonstrated, just another way for Justices to achieve their political goals."

While Toobin deserves praise for writing an otherwise good book, he shouldn't escape criticism for what he fails to do. Toobin can engagingly describe arcane legal minutae, he can lucidly inform his readers about the day to day mechanics of the court, but he can't articulate the conservative judicial view. This failure leaves his readers with the mistaken impression that the decisions of conservative judges have no basis besides their own political biases, which is mistaken. If the conservative legal perspective were so baseless why then would it be, as Toobin describes, ascendant? Too understand this ascendancy you have to at least understand the conservative legal mind, even if you disagree with it.