It is rare indeed that a favorite blogger will use the phrase “The best commentary I’ve yet seen comes from Mickey Kaus.” But that’s nothing; via Edroso, I present my first and last installment of “Hugh Hewitt is making sense”:
When Bush said “like Scalia or Thomas” many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear “justices committed to a particular theory…of textualism or originalism.” I think they heard “justices who aren’t making stuff up,” or “justices who aren’t full of themselves,” or “justices who will not impose same sex marriage or overturn every juvenille death penalty in the land or import EEC law on a whim.”
This is, of course, quite correct (except for the attribution of modesty to Scalia.) The giveaway is that Bush doesn’t talk about “originalism,” a real theory of constitutional interpretation, but “strict construction,” a theory that not even Scalia himself claims can serve as a general theory of constitutional interpretation; it’s a codeword. Bush’s invocation of Thomas and Scalia was a promise of conservative results.
But there’s a broader error in these arguments, which seem to be a background implication of a lot of arguments about Miers. The assumption seems to be that the Court’s legitimacy is tied to the quality of its reasoning. One example of this is the oft-cited argument that Ruth Bader Ginsburg made about Roe v. Wade. Ginsburg argued that it would have been better had the court waited for its gender equality doctrine to develop further, as this would have provided a sounder basis for Roe. Similarly, when I have brought up my findings that R. v. Morgentaler–the decision that struck down Canada’s abortion statute–produced much less of a backlash, several people suggested that this may be because the Canadian decision was more persuasive. Now, I certainly don’t question the doctrinal arguments being made here. I will post about this sometime, but Morgentaler indeed represents what I consider the best arguments for striking down abortion bans: the plurality opinions emphasized the vague wording and arbitrary enforcement of abortion statutes, and a concurrence made a Ginsburgian argument emphasizing the effects of abortion bans on women’s equality. Roe, conversely, is a poor opinion, and the substantive due process doctrine is not a very convincing basis for striking abortion statutes even if one accepts its general validity. That’s all true. The problem is, as an explanation for the greater backlash to Roe it’s transparently wrong. The most obvious difficulty is that, as many empirical studies have demonstrated, virtually nobody outside of a small cadre of professionals reads Supreme Court opinions. Only a vanishingly small percentage of citizens could tell you the doctrinal differences between Roe and Morgentaler. And there’s a more specific problem, which is that the American public supports Roe by a 2-to-1 margin. To accept the received wisdom, you have to assume that substantial numbers of strong pro-lifers would embrace Roe if it had been better crafted; I trust that the implausibility of this goes without saying.
Or, to borrow a point from Jack Balkin, take Brown. Nobody, for good reason, could get appointed to the Supreme Court if they thought that Brown v. Board was wrong, or if Dred Scott was correct; there is widespread, cross-ideological agreement on both points. But does this have anything to do with legal reasoning? Of course not. Earl Warren is nobody’s idea of a brilliant constitutional theorist, and Brown was not intended to be great jurisprudence; it was meant to be simple, non-accusatory, and short enough to print in major newspapers. On strictly craftsmanship grounds, I don’t think anybody could claim that it’s a superior opinion to Dred Scott. The difference is that simply that the Warren Court was right about the defining issue of the era, while the Taney Court endorsed an ideology that was profoundly immoral and was to soon represent the losing ideology in the Civil War. That’s it; there’s no second verse here.
There is a tendency among people who study law–and I certainly plead guilty on all counts–to project their interest in legal theory onto the public. But the public evaluates Supreme Court decisions in terms of outcomes–concerns about legal craftsmanship are the domain of specialists. In the long run, the Supreme Court’s legitimacy is based on results, period.
…iocaste makes a useful qualification with respect to the substantive point. I agree that the less high-profile the case, the more legal reasoning matters because the greater the influence of the specialists who care about legal reasoning will be. (I should emphasize as well that I’m talking purely about public perceptions of the court; the quality of the legal arguments made by lawyers certainly matters.) On the other hand, I’m not sure I entirely agree about the importance of craftsmanship in Kelo and Raich. It’s true that the Stevens opinions on both cases are solid enough pieces of work. On the other hand, I can’t really say that the reasoning per se is of a higher quality than the Thomas dissents in either case; while I disagree with both, Thomas’ arguments are not inept or unprincipled or implausible. I just disagree with his conclusions. I don’t think that iocaste’s ability to persuade people about the correctness of either case is dependent on what Stevens wrote; a good lawyer can make her own case effectively even if the court doesn’t, and most people will never read the opinion.