Bench Memos

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Souter Vacancy III: Obama, Pragmatist?


The most amusing article of the day on the prospect for filling Justice Souter’s seat was the front-pager in the New York Times, “As a Professor, a Pragmatist About the Supreme Court.”  That’s Professor Obama, of course (yes, I know).  Reporter Jodi Kantor interviewed the president’s former colleagues and students at the University of Chicago law school and tells us the following:

–That his nominee will likely be “a careful pragmatist with a limited view of the role of courts.”

–That Obama himself is “a minimalist (skeptical of court-led efforts at social change).”

–That he has “an unwillingness to deal in abstraction.”

–That he “does not particularly prize consistency or broad principle.”

–That (quoting Chicago’s Geoffrey Stone) “if Barack had a free hand to appoint judges without having to worry about confirmations, about politics, that his idea of a great justice would be someone like a Thurgood Marshall.”

What are we to make of all this, other than that the Times is serving the White House’s aims by trying to paint a word-picture of moderation and an absence of ideology?  The quotation from Geoffrey Stone may give the game away, of course, because no one ever accused Thurgood Marshall of pragmatism, minimalism, or a “limited view of the role of courts.”  I guess Stone didn’t get the memo.

But consider the other characterizations in Kantor’s article.  Consistency and principle are at the heart of all legal reasoning–and arguably “abstraction” is the indispensable tool in their service.  Only by de-personalizing the legal issues before them–i.e., by abstracting from the personal qualities or situations of the parties–can judges do justice to them.  After all, judges have been called on since 1789 to “solemnly swear or affirm, that [they] will administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent on [them] . . . agreeably to the constitution and laws of the United States.”  If that isn’t an explicit call for abstraction, principle, and consistency, I don’t know what is.  And the president isn’t drawn much to such things?  And this is supposed to be a good thing?

As for Obama’s being a “minimalist” who will appoint a “pragmatist,” these terms sorely need some fleshing out.  The most prominent exponent of “minimalism” on the Supreme Court is Obama’s erstwhile Chicago colleague Cass Sunstein, who moved on to Harvard and now works in the White House.  At least since his 1999 book One Case At a Time, Sunstein has made the argument that the courts should not press too hard for too much social change all at once.  But he argues this chiefly in order to avoid backlashes and to preserve the capacity of the courts to effect social change, regardless of whether the Constitution itself provides a rationale for the change in question.  This “minimalism” would more accurately be called “gradualist maximalism”–the accretion of ever-greater power to the judiciary by baby steps, or, to mix metaphors, on the analogy of the frog brought gently to a boil before he notices how hot it’s getting.  American democracy is the frog; Sunstein’s judiciary is the cook.  This is not what any traditional understanding of the judicial function would call “minimalism.”

As for “pragmatists,” haven’t we had enough of them?  For most of her career, Justice Sandra Day O’Connor was called a pragmatist.  The label has also been affixed to Justice Anthony Kennedy.  What distinguishes these two justices is that they answer to one principle and only one: absolute devotion to government by judiciary, the very opposite of a “limited view of the role of courts.”  Sometimes O’Connor or Kennedy would cast a “conservative” vote, sometimes a “liberal” one.  But the consistent pattern was augmentation of the judicial role and the removal of as many issues as possible from the control of democratically accountable institutions.  Judicial power above all other things was the “pragmatist” touchstone.  While it may not be transparently “ideological” in ordinary political terms, this is the very opposite of “moderation” in legal terms.

Senators interested in exposing something interesting about President Obama’s nominee should not be buffaloed by claims of “pragmatism,” a notion that has been no friend to the Constitution or to the rule of law.  They should probe the nominee for the very things the president is said–by his friends!–not to be interested in: principle, consistency, and abstraction.


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