May 5, 2009

Searching for a Souter

Maroon columnists Matt Barnum and Tim Murphy debate the Supreme Court vacancy.

[img id="77689" align="alignleft"] Correction Appended

Dear Tim,

Unless you’ve contracted swine flu and have been quarantined in one of the U of C’s mysterious “secondary housing isolation areas,” you have probably heard that Supreme Court Justice David Souter has announced plans to retire.

So what will President Obama look for in a new Justice? “Empathy,” he said during a Friday press conference.

What do you mean by that, Mr. President? “I will seek someone who understands that justice isn't about 30some abstract legal theory or footnote in a casebook,” Obama explained (kind of).

Let’s do a thought experiment: Pretend Sarah Palin had been asked by Katie Couric to explain what she would look for in a judge. Let’s say she responded by claiming what a justice really needs is compassion, while also scoffing at “abstract legal theories.”

If this had happened, I think that most liberals and some good-thinking conservatives would have been outraged, and rightfully so.

Admittedly, this isn’t completely fair. Credibility matters: Obama taught constitutional law; Palin probably couldn’t tell you what the Fourteenth Amendment says.

At the same time, the President’s declaration of what he’s looking for should be evaluated on its merits. What does Obama really mean when he says “empathy?” Does it mean empathy for pregnant women or unborn children? Compassion for small-business owners or small-business employees? Although we probably know Obama’s answers to both questions, “empathy” is not a coherent judicial philosophy. Constitutional law is all about legal theories—which are abstract by definition—and footnotes in old casebooks.

My question to you, Tim, is what does Obama mean? Is this just the new code for judicial liberalism? Or is there something else going on here?




A “secondary housing isolation area” is a pretty apt description of where David Souter will be living for the next few decades, but I seem to have avoided swine flu for the time being. Thanks for asking.

I think you’re missing the President’s main point. Obama neither dismissed nor scoffed at the necessity of “abstract legal theories” understood by a great jurist. In fact, he pointedly identified legal theory (and the dreaded footnotes) as a foundation for justice, although perhaps his phrasing was a little awkward. In the quote you highlighted, Obama was making a broader point: Legal theories alone don’t guarantee justice, and in fact, can occasionally impede its attainment.

So what did he mean by it? I think that, as a former constitutional law professor who specialized in race and the law, Obama has concluded that empathy is an inescapable variable in every Supreme Court decision, whether there’s too much of it or not enough. Imagine how history would have played out had Roger B. Taney felt a bit more empathy for Dred Scott, for example, or if Justice Souter had empathized more strongly with your aforementioned unborn child in Planned Parenthood v. Casey. Empathy, like theory, is nothing to scoff at.

Obama used empathy as both a rebuke of the Roberts Court and an attempt to rebrand liberal judicial ideology. Obama believes that conservative legal theories backfire by taking too narrow of an approach, which blinds the justices to the realities of their decisions—on forced school desegregation cases, for example, or voter ID laws.

I’m curious, though: What do you find so bad about empathy? And what would you prefer in its place?




There’s a common saying about the Supreme Court: “Hard cases make bad law.”

How I’ve always understood the adage is that in tough cases, a good application of the law sometimes leads to results that the judges are uncomfortable with. They end up writing bad law that wreaks long-term repercussions—though the jurists who wrote the opinion get to sleep at night knowing that in this one case, they showed empathy.

My other problem with empathy on the Court is that it is not a measurable trait, nor does it have any knowable consequences. I have no idea how much empathy Antonin Scalia has, and I don’t know how it would affect his decisions if he had more or less of it.

What I want from Obama is an explanation of the interpretational approach that he is looking for. I want him to say, “Here’s how I think judges should interpret the Constitution.”

Speaking of which, I’m curious, Tim, what you imagine the future of liberal jurisprudence is and/or should be.

Sometimes I think, and this isn’t an original point, that it all comes down to Roe v. Wade. Progressives have been trying to find a way to defend Roe since the decision came down 36 years ago. Now, it seems, they have settled on a philosophy: minimalism, the idea of incremental change and respect for precedent. Minimalists can safely criticize parts of Roe—Ruth Bader Ginsburg and potential Court nominee Cass Sunstein have—but still support it.

But I find liberal minimalism somewhat disingenuous. Liberals throw their hands up in the air, murmur a few perfunctory words about how Roe “may have overreached,” then turn around, shout “Precedent!” and vote to uphold the worst Supreme Court decision this side of Plessy v. Ferguson. Progressives have had their way with the Constitution since the ‘60s, and now they want to say, “Sorry, no going back.”

I don’t think that’s fair. Do you?



If we’re making a list of “worst Supreme Court decisions of the last 100 years,” I’d have to rank Roe well below Korematsu v. United States. Many people smarter than me can make a decent argument for why women should have the right to terminate a pregnancy, but I haven’t heard anyone make the case recently that Japanese-Americans should be rounded up and put in camps. (Speaking of bad precedents, has anyone ever overruled that one? We can’t have everything, but I’d like my next associate justice to at least be against forced internment of citizens.)

But back to your question—in addition to empathy and (most likely) estrogen, what should Obama’s appointee bring to the bench? There are a few things I’d like to see.

Unlike many liberals, I don’t have much of a problem with the current slate of (comparatively) liberal justices. “Active Liberty” is kind of a silly name for a judicial philosophy (it sounds like one of those loathsome political action committees) but it fits Stephen Breyer pretty well and I’m generally in favor a moderate judicial activism.

I take issue with your Holmes quote about “bad cases,” though. It’s difficult to quantify, obviously, but I do think justices have a responsibility to be responsive to societal shifts. Their task, as Obama suggested, is greater than simply poring through textbooks and upholding precedent. The clearest instance I can think of in recent years would be the Texas sodomy case that reversed a relatively recent precedent and essentially legalized homosexuality (Scalia’s empathy, by the way, was conspicuously absent in his dissent). Yeah, it was an activist decision, and I doubt our founders ever anticipated anything like it, but in 2003, it was simply the just thing to do.

It sounds like we each reject minimalism when the other side adopts it. But now I’m curious—what kind of liberal jurisprudence would you find acceptable?




There certainly are good arguments for legal abortion; there are no good arguments, to my mind, that the Constitution protects the right to an abortion. You’re right, though—I used Plessy because it was the most recent universally condemned Court decision that I recalled, but, of course, I was forgetting Korematsu.

More to the point, I think the sodomy decision, Lawrence v. Texas, is a great one to bring up. In the case, two gay men were arrested for having sex after police responded to a (as it turned out) false report of “weapons disturbance.”

The idea that the police can arrest adults for consensual sex in a private residence is antithetical to both of our, as well as most Americans’, fundamental notion of government power. It’s actually kind of horrifying.

The opinion in that case, however, was anti-minimalist, opening the barn door that is Supreme Court precedent to allow the farm animals that are public policy to run through it. (You can make fun of me for this metaphor later.)

I think Lawrence could have been decided the same way on equal-protection grounds; instead it was adjudicated based on a broad right to privacy. It also opened the (barn) door nicely for a judicial decision on gay marriage.

You and I—and just about everyone else here at the U of C—may agree that same-sex marriage is A-okay. But like it or not (and I don’t like it), most Americans disagree with us. That number is going down, but a Supreme Court decision removing the choice from the democratic realm could cause a backlash to the policy. (Use Roe as a cautionary tale: Attitudes on abortion were liberalizing until the decision; they’ve stayed stunningly divided ever since.)

And this might be where Lawrence takes us—down the road toward a judicial fiat on gay marriage. This is what happened in Griswold v. Connecticut, the 1965 case that led directly to Roe. Here, a ridiculous law banning married couples from obtaining contraception was in question. The Court made the empathetic decision, and next thing you know, we’ve got one million-plus aborted fetuses a year.

More fundamentally, I wonder why in a democracy, citizens are not allowed to make these decisions. So the truth comes out: What I really want is to abolish judicial review. Completely.

I fully understand what a radical position this is. What I think is much more extreme, however, is the view that the American people’s democratic decisions should be subject to the whims of nine judges without any accountability.



Thanks for all the farm animal references. According to Wikipedia, Lawrence has been criticized by some on the Right for opening the (barn) door to bestiality, which seems a little…deranged? But that’s a topic for another day.

I think it’s safe to say we’ll never come close to agreeing on judicial review—and not just because you apparently would have sided with Andrew Jackson against the Cherokees.

Judicial review can be inconvenient at times, but it’s a necessary safeguard against unjust legislation from the majority. If a belligerent legislature, backed by popular support, makes homosexuality illegal, for example, we want a detached, brilliant group of legal scholars to step in and put a stop to things. The same goes for segregation and, I guess, internment (by the way, I looked it up and Korematsu has yet to be overturned!). Without judicial review, checks and balances lose a lot of its punch, and minority groups lose their biggest ally. Much worse than an excessively activist judiciary is a bench that’s handicapped from correcting glaring injustices.

Fortunately, I suspect President Obama probably won’t be taking your advice on judicial review. But all is not lost. Can we both agree the idea of sitting around waiting for a justice to bite the dust is more than a little morbid? Kentucky senator Jim Bunning’s February prediction that Ruth Bader Ginsburg would die soon was pigheaded, but nonetheless inevitable in a system in which job turnover is dictated not by term limits but by actuary tables.

Souter’s Office Space–like disdain for life in Washington spared us this time around (after a quick 19 years) but a lifetime appointment puts citizens at a disadvantage, encouraging once great jurists to stay on the bench long past their prime. Moreover, the ability to retire at their own leisure gives an incentive to judges to stick around until a likeminded president takes the Oval Office. Whomever Obama does appoint, whether it’s Sonia Sotomayor or Joy Behar, let’s hope we’re spared the inglorious guessing game when she retires.



Tim Murphy is a fourth-year in the College majoring in history. Matt Barnum is a third-year in the College majoring in psychology. They are members of the Maroon editorial board.

Correction: The original version of this column erroneously described the Supreme Court case Lawrence v. Texas as having occurred in 2005. It was handed down in 2003.