A Harvard-Trained Lawyer on John McCain’s Court

I do so hate it when I am quietly flipping through one of the daily or weekly publications I read religiously on mornings—the New York Times, the Wall Street Journal, even my own campus’ dismal Daily Princetonian—and stumble upon an opinion piece so aggravatingly simplistic, so lacking in nuance or critical thinking, that I literally cannot help myself but fire up my computer and pound out a furious rebuttal. For such a glib piece of work to come from a Harvard-trained lawyer (and legal commentator of TV network news fame) only adds insult to this injury.

Yet that is precisely what occurred this morning. Jeffrey Toobin’s piece in the May 26 edition of The New Yorker set my blood aboil with its doctrinaire liberal stance on constitutional interpretation, to say nothing of its complete refusal to subject the facts underlying the issues on which he spills his ink to any halfway decent scrutiny. More importantly, in so doing, he has ruined my breakfast. For that, he must pay the price to my word processor.

In his appraisal of John McCain’s recent speech on Supreme Court appointments at Wake Forest University, Toobin digs into McCain’s reference to the 2005 Court decision, Roper v. Simmons, that struck down the death penalty for murderers under the age of 18 as unconstitutional. In his speech, McCain expressed disapproval of the majority opinion in Roper—written by Justice Anthony Kennedy—in its reference to “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Toobin writes, “Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 have been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, the United States apparently belongs on this dismal list.”

One wonders whether Toobin means to argue that the Supreme Court ought to judge the constitutionality of policies enacted by democratically elected representatives of the American people based on how commonplace such policies are in the other countries of the world. Such an argument, of course, would be deeply problematic at best, not only in its logical ramifications for US national sovereignty, but also in its complete neglect of the question of whether there is any solid basis for such a judgment in the Constitution of the United States itself. This is not to mention the distinct possibility that McCain does not necessarily believe in the juvenile death penalty, but rather simply believes that its practice or abolition should be decided by American voters, not by the unelected Supreme Court. In true-blue liberal fashion, Toobin leaves these questions completely unexamined.

As for the facts of the case itself, Toobin conveniently glosses over the fact that the defendant slated for execution in Roper v. Simmons was only several months short of his eighteenth birthday. He committed a carefully orchestrated, calculatingly premeditated, heinous murder of a completely innocent woman, tying her up, locking her in the trunk of his car, driving her to a national park and throwing her off a fifty-foot bridge onto sharp rocks in swirling rapids. Toobin takes little notice of this, failing even to question whether someone who is that close to legal adulthood—and therefore surely more than mature enough to grasp both the evil of his actions as well as their consequences—should be eligible for capital punishment for a homicide so depraved as the young Mr. Simmons’.

Leaving these loose ends left so messily untied, Toobin goes on to lambaste McCain for the latter’s objection to the Court’s reliance on the “penumbras” that supposedly “emanate from” the rights explicitly enshrined in the text of the Constitution. He explains that those words come from the Supreme Court’s 1965 Griswold v. Connecticut decision, which established the purported constitutional right to privacy that formed the basis for that opinion’s prohibition of bans on birth control for married couples as well as for later decisions striking down anti-abortion laws in the states. Toobin decries McCain’s speech as “a dog whistle for the right—an implicit promise that he will appoint Justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of teenagers.”

A Harvard Law School alumnus like Toobin is surely aware that neither the word “privacy” nor any of its possible synonyms appears anywhere in the Bill of Rights. Yet he doesn’t let that stop him from pillorying McCain for daring to protest the Court’s unilateral amendment of the Constitution to include a right that simply isn’t there. Nor does he even bother to explain exactly how the Third Amendment to the Constitution, with its ban on the quartering of troops in private homes—and nothing more—or the Fourth Amendment, with its prohibition of unreasonable searches and seizures—and nothing more—somehow translate into a blanket right to privacy. The Griswold Court’s comically flimsy pretext that these rights have “penumbras” that include a right to privacy is taken by Toobin as gospel truth, with not even the barest pretense of critical analysis on his part. Meanwhile, the implications for democracy of such an exercise of raw judicial power (with its addition of a new right to the Constitution by judicial fiat rather than by the will of the American people) are left not only unevaluated, but completely unmentioned.

Let us count the ways in which Toobin’s sophomorically superficial appraisal of McCain’s constitutional philosophy could actually militate against his own political views. He implicitly defends Justice Kennedy’s reliance on the legal conventions of foreign countries to provide what the latter called “respected confirmation” for the Court’s decision to strike down the juvenile death penalty. How would American abortion jurisprudence turn out if it were subjected to this same interpretive modus operandi? As Supreme Court Justice Antonin Scalia has pointed out ad nauseam, many European countries, for instance, actually have abortion regulations that are at least somewhat more restrictive than the untrammeled access to abortion that the Supreme Court has force-fed the American people since 1973. These are the kinds of regulations that precedents like Roe v. Wade and Planned Parenthood v. Casey would require the Court to strike down in a fetal heartbeat. Conversely, if the Court were to apply Justice Kennedy’s—and Jeffrey Toobin’s—philosophy consistently, Roe, Casey and other such bastions of judicial oligarchy would have to go out the window. Personally, I have my doubts about the likelihood of that ever happening. Ideologues like Mr. Toobin, whether liberal or conservative, are not known for letting logical consistency stand in the way of their respective agendas.

Let us now turn to the Griswold Court’s “penumbras” and “emanations” nonsense which Mr. Toobin worships so abjectly. If indeed this was a sound legal and logical basis for the Court’s privacy jurisprudence, why not apply it to other constitutional controversies as well? What would then be the argument against finding in “penumbras” of, or “emanations” from, the Fourteenth Amendment’s Due Process Clause a “liberty of contract” that would invalidate minimum-wage laws and sundry other economic regulations? After all, this would not differ much from a series of opinions the Supreme Court has handed down in the past. I refer, of course, to 1905’s Lochner v. New York case, in which the Court ruled that New York State’s laws limiting the number of hours a bakery could require its employees to work was an unconstitutional breach of the liberty of each worker to negotiate the terms—all the terms—of his own employment contract with his boss. Mind you, neither the Lochner Court nor its successors (which spent the next thirty years obstructing the establishment of the American welfare state on these same grounds) relied on “penumbras” or “emanations” to do their dastardly deeds. Yet surely we could agree that the last thing they needed was another useful pretext for it, no?

One should consider that Toobin’s article is guilty of precisely the same shortcoming of which he accuses McCain: slyly omitting certain inconvenient elements of the issues under scrutiny. I have already pointed out his failure to explain the facts of the Roper v. Simmons case. Later in his article, Toobin notes that the Supreme Court under Chief Justice John Roberts’ leadership has “approved a federal law that bans “a form of abortion”. Naturally, he neglects to mention the grisly nature of the “form of abortion” in question, scientifically known as “intact dilation and extraction” and more colloquially known as “partial-birth abortion”. This entails pulling most of the fetus’ body from the birth canal, then puncturing the base of the fetus’ skull and suctioning out its brain to allow its head to be removed as well.

Though I have my own opinion on whether such quasi-infanticide should be legal, I do not mean to denigrate the legitimate debate that is to be had about it. Rather, I believe that given the Constitution’s silence on this or any related issue, and given the complex vagaries of the matter itself, the debate should be had, out in the open, by the American people, and that it is their judgment that ought to prevail—not that of nine robed judges on an unelected court.

This point leads directly to the root cause of Mr. Toobin’s insatiable appetite for left-wing judicial activism. It is fundamentally the same as the root cause of many movement conservatives’ appetite for right-wing judicial activism (of the kind that wishes to strike down policies like affirmative action, for example). I refer to the inability to distinguish between the political and the legal—or more precisely, between the political and the constitutional. There are too many minds on both left and right that seem to believe that almost any policy they disagree with must be unconstitutional. As a result, there are too few souls who truly oppose judicial activism in toto; the general tendency is to approve of it—or, more accurately, to characterize it as something other than judicial activism—whenever it yields policy outcomes that suit one’s own ideological predilections.

Mr. Toobin is a picture-perfect example of this. He believes, for instance, that abortion should be legal. A long-ago Court decided, on the flimsiest of premises, that legal abortion was not only right in principle and in practice, but a constitutional requirement as well, and those who beg to differ have yet to build a solid majority on the nation’s loftiest bench since. As a result, Mr. Toobin and his ilk believe that legal abortion is not only the most just policy, but a constitutional right as well, and therefore insist that the Supreme Court enforce that particular viewpoint on society as a whole—the democratic will of the American people be damned.

Omitted from the underpinnings of this childishly kneejerk stance is any consideration of whether the Constitution itself actually supports this view or any other like it. The Supreme Court is treated by Mr. Toobin and his liberal sympathizers, and by their opponents on the right, not as the institution responsible for ascertaining, as impartially and as free from political bias as possible, what the Constitution’s objective verdict is on the issues facing society, but rather as a rubber-stamp for forcing their own biased political opinions on the nation as a whole. If the Court issues decisions that fly in the face of liberal orthodoxy—such as allowing American voters, via their democratically elected representatives in the states or in Congress, to write policy on issues like abortion and capital punishment—well, then, the Justices responsible must be crazy or even bigoted, and more “progressive” types must be appointed to the Court, pronto. What the Constitution itself actually says—or, just as importantly, what it doesn’t say—about these contentious social issues is the last thing on your average politico’s mind.

Nothing else could be the impetus for Toobin’s characterization of the Roberts-Alito-Thomas-Scalia conservative cohort on today’s Supreme Court as “more radical than any that the Court has seen since FDR’s appointments”. To Toobin, only a “radical” could possibly believe that governments should be allowed to ban the puncturing of a half-born baby’s skull and the suctioning out of its brains, or that said governments should not be allowed to forbid a child to attend a school which is already attended by too many other students of his or her skin color.

To Toobin, the age of Chief Justice Earl Warren was “the noblest era in the Court’s history” as much because it was the most liberal era in the Court’s history as for any other reason. Were many of those liberal decisions largely disconnected from well-informed, well-reasoned interpretation of the Constitution itself? Did they inadvertently usurp much of the authority of the American people’s democratically elected representatives in the process? Even if they did, reply far too many judicial liberals, so what? It’s a small price to pay for edging American society a little bit closer to the left-liberal conception of “social justice”.

Perhaps the most dismaying element of Mr. Toobin’s puerile approach to constitutional interpretation is that it comes from a graduate of Harvard Law School. If one can make it through that august institution of higher learning without gaining a more nuanced view of the world’s finest democratic constitution than this, I just may have to take a rain check on that LSAT prep course.