Jeffrey Toobin Offers a Grownup Perspective on Constitutional Law

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.