Bench Memos

NRO’s home for judicial news and analysis.

Jeffrey Toobin’s The Nine—Part 5


I’ll use this final (I think) part to address Toobin’s assertion that, with the appointments of Chief Justice Roberts and Justice Alito, a counterrevolution “has now begun.”  I hope that he is right, but more strong appointments are needed for any substantial change.  More to the point, he and I disagree very much on the nature and direction of the change that justices like Roberts and Alito might help bring about.


Toobin contends that the goals of judicial conservatives “reflect[] and reinforce[] the political goals of the conservative wing of the Republican Party” (p. 11).  But advocates of a jurisprudence of original-meaning and judicial restraint believe, by and large, not that the Constitution should be read to entrench their own political beliefs, but rather that the Constitution leaves the broad bulk of issues to the democratic processes for decision. 


Take Toobin’s “central legal issue” of abortion, for example.  Very few judicial conservatives maintain that the Constitution prohibits legislators from enacting permissive abortion laws.  Most of us instead maintain that the Constitution is substantively neutral on the question of abortion.  (My essay here develops these points.)  It is, of course, true that overturning Roe and restoring abortion to the democratic processes would make it possible for political conservatives to pursue the goal of enacting laws that provide significant protection to in utero human beings.  But it would make it equally possible for supporters of legal abortion to work to enact permissive abortion laws.  (Indeed, there are many judicial conservatives who would favor legislative enactment of permissive abortion laws.)  As this example illustrates, the goals of judicial conservatives are generally quite modest in reach and do not reflect, or mirror, the policy goals that we would pursue.  By contrast, it is the “living Constitution” approach that largely entrenches the Left’s policy preferences in the guise of constitutional rights—and thus deprives future generations of the very adaptability that proponents of living constitutionalism purport to favor.


Toobin asserts that the new generation of conservatives that arose in the 1980s “did not believe in judicial restraint, and they represented a new kind of judicial activism themselves” (p. 14).  In support of this wild assertion, Toobin somehow attributes generally to members of the Federalist Society the legal position that “much of what the federal government did was unconstitutional.”  As Orin Kerr puts it (in this Volokh Conspiracy post): 


Toobin’s fascination with the seemingly nonexistent “Constitution in Exile” movement is particularly telling. [Volokh Conspiracy] readers will know this movement either doesn’t exist or consists of three dudes meeting for dinner once in a while. But Toobin seems to think this “movement” is central to conservative legal thought.  


Toobin likewise presents a cartoonish misunderstanding of originalism, confusing, for example, Scalia’s original-meaning jurisprudence with a very narrow conception of original intent.


Toobin is a fine writer and an excellent storyteller.  But, because of some mix of his own biases, confusion, and carelessness, he provides few if any trustworthy insights on (or even coherent arguments about) what is really at stake in the ongoing battle over the Supreme Court.

Tags: Whelan


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