Feb 22, 2014

Disgraceful Denial of Oral Argument?: Toobin v. Thomas, ____ U.S. ____ (2014)

Toobin Considers What's Disgraceful
Jeffrey Toobin is one of America's most respected commentators on the Supreme Court, a wealthy scion of a N.Y. media family, a personal friend of Justice Elena Kagan, CNN's cheerleader for the Court's leftist caucus. His standing in America's decadent media/legal elite has not been affected by the N.Y. Times' report of his notorious, long-term adultery with the younger daughter of a former CNN colleague or his attempts to avoid responsibility for his illegitimate child.

Here, Toobin accuses Justice Clarence Thomas of "disgraceful," "embarrassing," "ludicrous," institutionally "demeaning" dereliction of judicial duty because he does not actively participate in oral arguments. Thomas has previously explained that he thinks his colleagues do not give parties' advocates enough time to explain their positions. Given his colleagues' excesses, he refrains from questioning to allow the advocates some time to advocate. Nevertheless, Toobin is rightly concerned that without the theater of questioning, as he says, "[t]he public would ... immediately, lose all faith in the Supreme Court." 

Without the Facade, Who Would Worship at this Temple?
If Toobin were not a shameless hypocrite smearing an honorable man for political reasons, I might praise him for pointing to an important issue here. The leading academic authorities offer objective, statistical evidence that Supreme Court decisions are determined by the Justice's political ideology and/or other self-interested factors rather than by law or other legitimate jurisprudential criteria. The public agrees. For example, 75% of Americans believed that the Justices were motivated by political rather than legal considerations in upholding Obamacare. Conservatives have a hard time holding on to occasional political defectors like balls-and-strikes Roberts who can umpire a penalty into a tax when the media heat gets too high. The left's media enforcers, like Toobin, regularly reward Republican betrayal with public praise ("it is wise to listen" to Roberts, the "earnest Midwesterner") and punish stalwarts like Thomas with outrageous public insults (Toobin stoops to stab at Thomas's "heavier" weight).

But Toobin is right that if Supreme Court Justices did not even put on a show of legal argument, the public's belief in the Supreme Court's apolitical function would lose whatever remaining vigor it possesses. It is an essential disguise. While there is no evidence that oral arguments actually serve a deliberative legal function, they are conducted in a jargon capable of sublimating political and moral disputes and covering ideological maneuvers with a legitimating air of neutrality. If all the conservative Justices boycotted the Court's arguments like Thomas, it would have a profoundly destabilizing effect on the Court's methods of legitimizing its decisions. That is, it would openly announce what most academics and the public already believe -- the court is not deciding its most politically important cases on the basis of law, but on the basis of will. We kill babies, ban praying in schools, "marry" men to men, permit the federal government uncontrolled powers because most Justices want it, not because the constitution requires it.

Of course, rather than getting all the Justices to contribute to the play acting as Toobin desires, one might heed Thomas' call for a return to an authentic tradition of Christian constitutional adjudication. If the discourse before the Court were not dominated by modernity's sterile secularism and pusillanimous positivism, I believe Thomas would be leading the questioning.

1 comment:

  1. Michael C. McConnell wrote an excellent end-of-the-year summary of the 2013 term of SCOTUS in First Things. You can read it here: http://www.firstthings.com/article/2013/10/2013-supreme-court-roundup

    As McConnell goes on to demonstrate, "The United States Supreme Court has two personalities. In the vast majority of cases on its docket, those involving criminal law, business regulation, statutory interpretation, freedom of speech, procedure, jurisdiction, and other technical but important legal questions, the Supreme Court acts like a court of law--a good one."

    On the other hand, "there are the hot-button ideological cases. ... In these cases, the Court seems to lose its bearings. The justices split into predictable warring camps ....The opinions in these cases are often failures of legal craft. Passion 'not law' tends to govern outcomes."

    Toobin, for all his surface intelligence, can't see outside his ideological box. It's absurd to attack Justice Thomas for such a non-issue as not asking questions during oral argument. His opinions--which is what counts for the rule of law--speak for themselves but apparently Toobin doesn't want to do the hard work of interacting with Thomas's reasoning.