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What Liberals don't get about Judicial Conservatism
4 years ago

By Ben Cohen  

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.


4 years ago

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.


4 years ago

I find it is usually that case for liberals to not think through a subject but to rather go on the defensive or to twist words to make an error in judgement seem right.  They do not seem to be very deep thinkers but rather act upon emotions to sway others to their way of thinking.

To have judges that pander to political correctness rather than interpret the law is a danger to society and the constitution as we have seen many times, i.e. the separation of church and state that was never written into the constitution, but rather taken from a comment made on an entirely different subject.  

4 years ago

Margaret, sometimes I wonder if it is the media that has taught the Democrats (liberals) to respond and think like this or is it the Democrats (liberals) that taught the media.  Then I get to thinking about our higher education and the infiltration of socialists (and yes, communists) and their agenda and realize that so many of our politicians now are the first group fully indoctrinated in the universities where they taught by these socialists/communists or pro-communisim thinkers so it is no wonder they are as they are.  It would also affect the media and when you have George Soros and his type out there manipulating it is only worse.

4 years ago

You're right, Linda.  The socialist curriculum in our schools are producing irrational thinkers that are easily led.

You mentioned George Soros - the other day if I had been anywhere near him, I would have kissed Putin for putting out an arrest for Soros.  I hope he gets him.  Must be bad if he ticked off a Communist leader.  Would like to know what he pulled.  I know he is in on the Central Bank/Federal Reserve rigging.

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