Bench Memos

Professor Tribe and “Pragmatically Progressive” Judging

I must say that the most interesting stuff sails through Ed Whelan’s transom.  I’m referring, of course, to the wonderfully revealing letter from Professor Laurence Tribe of Harvard Law to President Barack Obama, his former student, during the period when the White House was deliberating on whom to nominate to fill the seat of retiring Supreme Court Justice David Souter.  On so many levels, it’s completely understandable that Prof. Tribe is embarrassed to have the letter made public.  He deplores the lack of influence Justices Breyer and Ginsburg have over Justice Kennedy, all but treats Kennedy as a will o’ the wisp blown this way and that, discounts Breyer’s heft in intellectual combat with Justice Scalia, and belittles the intelligence of then-potential-nominee and now-Justice Sonia Sotomayor.  On top of it all he puts in a word or two desiring a cushy job at DOJ where he’d get to play at amateur philosopher-king on the federal payroll.  The only figures who come out well in Tribe’s letter are Tribe himself, the president to whom he is writing in flattering tones, and Elena Kagan, who can be privately pleased at Tribe’s open admiration of her–assuming, that is, that she was never intended by its author to see this letter.  (Should we assume that?)

But I want to say just one thing more, and in saying it declare my pride in occasionally managing to recapture a naivete that for the most part fled from me long ago.  In the first sentence of his letter, Professor Tribe, a teacher of constitutional law at one of America’s great educational institutions, declares that the Souter vacancy presents the president with “an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.”  On the second page of the letter, Tribe goes on to say that he would like a justice who can “advanc[e] a humane and yet suitably cautious conception of the rule of law and the role of courts in the pursuit of justice.”  That line sounds fairly anodyne taken by itself.  But a moment later he describes (and flatteringly attributes to Obama) a “simultaneously progressive and yet principled, pragmatic and yet constrained, approach to law and justice” as the goal for which to aim.

In this fog of words, pay attention to the “yets” and to the dominant adjectives.  Tribe desires a Court that moves the country in a “progressive” direction–not one that is guided by neutral principles of the rule of law, derived from a Constitution that has its own integrity.  He wants a “pragmatically progressive” Court, to be sure–but that only means not frightening the horses as you go about a business that would be too shocking if it were too obvious.  He wants a “humane” jurisprudence, “yet suitably cautious.”  A “pragmatic” approach and “yet [a] constrained” one.  (Hang on, wasn’t “pragmatic” serving earlier to rein in the “progressive” stuff?  But now it’s the pragmatic that needs constraining.  Go figure.)  It must be “simultaneously progressive and yet principled.”  

It’s nice to see that in Professor Tribe’s legal world, “progressive” is at odds with “principled.”  It’s equally interesting to note that the goal is clearly progressivism, and that the qualifiers cautious, pragmatic, constrained, and even principled are all about giving the American people that spoonful of sugar that makes the bitter medicine go down.

The importance of this letter goes beyond what it says about the personalities involved.  It reveals that when they think we are not paying attention, liberal jurists and their political allies are quite frank with each other about their view of the Supreme Court as just another political institution, and the Constitution as a document that does not shape the Court’s behavior but is instead shaped by it.  This is actually just the way many legal scholars talk and write among themselves, but they usually take pains to conceal this instrumentally political view of judging when they enter the political arena, such as in testimony during Supreme Court nominations.  The Tribe letter shows that in the back channels of political maneuvering, they revert to type.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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