Toobin’s Gotta Be Toobin

by Ed Whelan

As I’ve taken on some of the grossly unfair attacks on Justice Scalia, a number of readers have forwarded me Jeffrey Toobin’s New Yorker column as another entry in the genre. Indeed it is, though, given Toobin’s long history of hostility to Scalia, I wouldn’t have expected anything different.

I’ll limit myself to a few brief points:

1. Toobin’s basic approach is to ascribe evil motive to Scalia. Thus, he asserts in his first sentence that Scalia “devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.”

Contrast this fairminded statement that liberal law professor (and frequent Supreme Court litigator) Alan Morrison sent me:

As you know, the Justice and I did not always (or even often) see eye to eye on legal matters, but I never attributed evil motives to him. He just had a different view of law and the world than I did in many situations.

2. Toobin displays this same attribution of bad motive in his second paragraph, where he contends that Scalia’s constitutional positions on gay issues were driven by his “revulsion toward homosexuality.” Note his weird transition to his third paragraph—“But it was in his jurisprudence …”—which ludicrously implies that there was some sort of divide between Scalia’s constitutional positions on gay issues and his originalist jurisprudence.

3. After all these years, Toobin can’t even describe Scalia’s originalism accurately. Toobin claims that it is a “theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century.” No. Under Scalia’s originalism, it’s not the “beliefs of the white men” that govern; it’s the original public meaning of the various provisions of the Constitution. And those provisions include, of course, the post-Civil War Amendments and all the other post-18th-century amendments.

4. Toobin contends that Scalia, “as an advocate of judicial restraint,” claimed to believe that the Court “should defer to the democratically elected branches of government,” but instead “lunged at opportunities to overrule” democratic enactments. But Scalia never adopted the position of absolute deference that Toobin suggests.

A central challenge of any theory of constitutional interpretation is to explain when it is proper for courts to intervene to override democratic enactments. There’s plenty of room for intelligent folks to contest whether various of Scalia’s rulings striking down democratic enactments were consistent with his originalism. But setting up a straw-man distortion of Scalia’s position is not an intelligent way to engage in that debate.

5. In his crowning incoherence, Toobin claims that “on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation.” But the prior question that Toobin leaps past is, of course, whether the Constitution actually speaks to those “social issues”—whether, in other words, it’s legitimate for the Court to try to impose its say on them. Scalia’s answer, on issues from abortion to marriage to the death penalty, was that the Constitution leaves the matter to the legislative processes to decide—and to revisit over time. That approach, rather than five justices’ permanent entrenchment of the legal elite’s supposed wisdom of the day, is a far better guarantor over time that our laws and policies won’t be “out of step” with what the public wants.

Overall, I continue to find it astounding that Toobin either understands Scalia so poorly or is happy to leave his oh-so-intelligent New Yorker readers so misinformed.

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