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Wednesday, May 21, 2008

Jeff Toobin and "Extremism"

According to Jeffrey Toobin, in this much-remarked (though, in my view, underwhelming) New Yorker essay, Sen. McCain's May 6 speech on judges and the judiciary, and the facts that he "has long touted his opposition to Roe" and "has voted for every one of Bush’s judicial appointments", show that he is "getting his advice on the Court from the most extreme elements of the conservative movement."

I would have thought it was obvious and uncontroversial -- i.e., not "most extreme" -- that it is possible -- I've seen it done! -- for decent, thoughtful, informed people to believe that Roe was wrongly decided, that those of President Bush's judicial nominees who have been confirmed should have been confirmed, and that, generally speaking, it is a good thing to have federal judges and Justices who approach their work more or less in the way that Chief Justice Roberts and Justice Alito approach theirs.  (It is, of course, just as obvious to me that such people can and do think otherwise.)  No?  (Disclosure:  I'm on -- I confess! -- Sen. McCain's "judicial advisory committee", though I have yet to be asked by the Senator for any "advice", extremist or otherwise.)

Posted by Rick Garnett on May 21, 2008 at 11:46 AM in Constitutional thoughts | Permalink


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Not to beat this to death (I appreciate all the comments), but: Matt, I think George would want to insist that "prudential" reasons are not simply reasons of practicality, efficiency, etc. That is, I am pretty sure he would say -- as he should -- that there are *good reasons* for the state not to outlaw (non-abortifacient) contraceptives (even though, he believes, the use of such contraceptives is usually immoral) and that, while "morals regulation" is permissible and often warranted, the political authority not only may, but *must* take into account the possibility that such regulation could damage other important goods (e.g., marital privacy). There are, in other words, *moral* limits on morals legislation.

As for Finnis, I would be very surprised if it were the case that he believes that it is not immoral, full-stop, to intentionally kill a physician who performs abortions.

Posted by: Rick Garnett | May 23, 2008 10:44:30 AM

Matt, I would think that the view that is "pretty flatly rejected" by most Americans is that contraception should be illegal, not whether such a prohibition would violate the Constitution. It seems to me that if the consensus on such laws approaches unanimity, the argument against overruling Griswold diminishes: if it becomes a bulwark against a law that no one proposes to pass, what we're left with is the force of its general reasoning in more controversial areas, and the question of whether that ought to be overruled.

Posted by: Simon | May 23, 2008 10:29:35 AM

Rick, I'm pretty sure that George thinks Griswold was wrong and that, at least, it is permissible to ban birth control. That already puts him at an "extreme" end as far as most Americans are concerned since that view is pretty flatly rejected, even by most Catholics. My further impression from George's work is that he thinks the state both can and should legislate issues of moral concern- that this is perfectly proper. Since he clearly thinks that birth control is immoral (as is any sex not done with the clear possibility and intent to have children) this would seem to imply that he would think birth control should properly be banned. He _might_ think there are prudential reasons for not doing this (like John Finnis thinks there are only prudential reasons not to kill abortion doctors) but assumedly if those could be over-come (or if he doesn't think they exist) he'd be in favor of a ban on birth control. Do you know if he's said otherwise, in particular for non-prudential reasons? His views really are extreme. _That_ doesn't make them wrong, of course, but I think it's very difficult to not say they are extreme, and he is a member of McCain's judicial advisory board.

Posted by: matt | May 22, 2008 9:15:06 AM

To reiterate a version of the point I made above in a slightly different way, in the context of judicial nominations (which is where this whole conversation started, right?), it's not immediately obvious what to make of the view that Roe "is clearly wrong, as a matter of constitutional interpretation." After all, for those who hope the Court will one day fix Roe's "error," the operative question is whether a nominee to the Court will vote to overrule Roe. More specifically, the question is what weight Roe's wrongness would play in the nominee's decision whether to overrule it. There seem to be three options here:

1. The nominee might think that Roe's wrongness provides a sufficient basis for overruling it. I think it's fair to describe that as an "extreme" position on constitutional stare decisis insofar as it's clearly contrary to the Court's stated approach. To be sure, commentators have found fault with particular applications of the various considerations that the Court has said are supposed to go into a decision whether to overrule a constitutional precedent. But for a judge or judicial nominee to reject those considerations altogether in favor of an approach that would overrule constitutional precedents simply because they were "clearly" wrongly decided is, to me, so far outside the mainstream of judicial practice as to merit the label "extreme." (Justice Thomas has from time to time taken a position along these lines, but among Justices he's really alone on this one, and people across the ideological spectrum tend to recognize his position as extreme.)

2. The nominee might think that a straightforward application of the Court's "doctrine" of constitutional precedent supports overruling Roe. It seems to me that this, too, could reasonably qualify as an "extreme" view. One needn't embrace any formal theory of "super precedent" to appreciate that a decision to overrule Roe would be awfully hard to square with a lot of post-Roe precedent that explicitly embraces, reaffirms, and refuses to overrule Roe. Casey is the most obvious case here. The Casey Court having said what it said about Roe and stare decisis, it seems fair to say that any argument that the Casey stare decisis factors actually support overruling Roe (and, therefore, Casey!) qualifies as extreme.

3. The nominee might concede that Roe's mere wrongness is not enough to justify overruling it, but argue that the Casey approach to stare decisis is wrong and that the Court should embrace some other set of considerations when deciding whether to overrule a constitutional precedent. This, too, would reasonably qualify as an extreme view insofar as it would stand way outside the mainstream of judicial practice today. Maybe the argument would be compelling. Maybe some would even think it "right." But it's in such tension with current doctrine that it's fair to call it extreme.

Putting all this together, although I don't think it's necessarily "extreme" to say that Roe was wrongly decided as an original matter, I *do* think it's fair to say that those who favor overruling Roe today are taking an "extreme" position on the stare decisis issue. I don't mean this as an epithet or political rhetoric; I just mean it as a statement that this position is seriously at odds with the judicial pratice of constitutional law. Is it objectionable to use "extreme" in this fashion?

Posted by: Trevor Morrison | May 22, 2008 8:23:04 AM

Matt -- I'd be very surprised, for what it's worth, to learn that Robby George thinks contraception (as opposed to what he regards as early-abortion-causing treatments) should be illegal.

On the description-not-epithet / place-on-the-spectrum point, which several folks have raised: Fair enough. But, we then have to call the New York Times "extreme" (see my comment above), and that seems weird to me.

TJ -- maybe this is pollyannish, but I think I can say *both* that Roe is clearly wrong, as a matter of constitutional interpretation, and *also* that one can think it is clearly right, as a matter of constitutional interpretation, without being "extreme."

Joe, you could be right; I could be overreacting, perhaps out of defensiveness, or perhaps just out of irritation at the smugness of the "people who think like me constitute, by definition, the reasonable center" vibe that I get from Toobin's essay (and from so much of what passes for constitutional commentary). That said, I *do* think that Toobin suggested that "extreme" (i.e., not "reasonable") attaches to "think[ing] Roe wrongly decided as a matter of constitutional law."

Posted by: Rick Garnett | May 22, 2008 7:22:43 AM

I read Toobin's piece, and my reaction was "I thought Toobin purports to be a serious commentator on American legal affairs," much like Rick's comment above. And that's even though I don't have a dog in the Roe v. Wade fight.

Posted by: David Bernstein | May 22, 2008 1:19:57 AM

It seems worth mentioning that Toobin did not say that the Chief Justice and Justice Alito are "the most extreme elements of the conservative movement," but that McCain seems to be getting his advice on judicial appointments from such. He also did did not say that it is impossible for a reasonable person to think Roe wrongly decided as a matter of constitutional law. Thus, the reaction here seems a bit over-the-top.

Further, if you line everybody up on a continuum, Roberts and Alito may not quite sit with, say, Justice Thomas, but they're plainly situated very far toward the right end of the axis. You can interpret Toobin's language as painting certain people as "wacko" if you like, but it seems fair enough to say that the "extreme" label surely applies just based on the fact that McCain is signaling that his appointments, like President Bush's, would be situated very far toward one end of the spectrum.

(By way of comparison, you might call Justice Brennan -- or more accurately, the interest groups and ideologues demanding appointment of someone Brennan-like -- "extreme" even if you were, contra Orin's suggestion, politically inclined in that direction, whereas the same label could not be affixed to someone like Justice Souter [or probably even Stevens or Ginsburg].)

Posted by: joe | May 21, 2008 8:19:10 PM

Rick, I think an important explanation here is that there are two "mainstreams" in American law, and they are very far apart.

One camp thinks that Roe v. Wade is very clearly wrongly decided (not just wrong, but very clearly); that affirmative action is usually unconstitutional; that "entanglement" of church and state, by itself, is usually not a valid objection; etc. etc.

The other camp thinks that Roe v. Wade is a fundamental decision on a fundamental right; that affirmative action is sometimes constitutionally mandated; that church-state seperation requires disentanglement, sometimes to the point of discriminating against religion; etc. etc.

In this atmosphere, it is easy--and not altogether linguistically incorrect--to say that almost everyone in the opposing camp is extreme. After all, if you believe that Roe v. Wade is clearly wrong, what do you call someone who believes it absolutely and fundamentally correct, except "extreme"?

Posted by: TJ | May 21, 2008 8:05:51 PM

I'm inclined to agree with Rick that, to the extent "extreme" has any actual substantive content beyond being a mere epithet (and I hope it does; I don't like it when we have to sacrifice familiar words to the epithet-slingers), it's hard to say that all versions of the "Roe was wrongly decided" viewpoint are extreme.

But how about "Roe should be overruled"? Even admitting that the Court's approach to stare decisis has a fair bit of play in the joints, isn't there a better argument that this position is indeed "extreme"?

Posted by: Trevor Morrison | May 21, 2008 7:43:12 PM

I think we're looking at two shades of the word "extreme". I think Dave and I are thinking of extreme spacially, as in, "at the end of the spectrum." This is what I thought Toobin was talking about--a judicial temperament that, it seems to me, can quite plausibly be characterized as far-right. Whether or not these views are "extreme" in this sense is probably just a matter of perspective, which is why the question of the appropriateness of the word "extreme" seemed a bit tedious to me at first.

But Rick, you make an excellent point that "extreme" is often code for "wacko", and on this score it does seem a bit irresponsible for Toobin to be throwing that word around regarding those who share the views you outlined in your post. Those views aren't wacko, and to the extent Toobin suggests they are, he's wrong.

I just don't know if that's what Toobin's doing. He equates the views with "the most extreme elements of the conservative movement," which I guess could translate as "the craziest Republicans," but I took him to mean the far-right, the party base, etc., and looking at McCain's rhetoric, I'd have to side with Toobin.

Now, maybe Toobin is trying to denigrate views as "extreme" that are actually matters of wide agreement. Is that what's going on?

Posted by: Paul | May 21, 2008 6:42:11 PM

Robbie George, at least, seems to me to count as a pretty extreme figure. Surely his views (on birth control, which I'm pretty sure he thinks both can and should be made illegal, for example) are pretty far outside both the general and the legal main-stream. Other examples on his views are easy to fine. This probably doesn't apply to all of McCain's advisers, but it seems uncontroversial to me to say that George's views are extreme.

Posted by: matt | May 21, 2008 5:54:19 PM

Paul -- I don't want to come off as, or to be, "tedious", and maybe you are right to suggest that I'm overreacting. Still, I guess my frustration with Toobin's essay, and the "extreme" label generally, is that (a) "extreme" is -- as Dave suggests -- an epithet, in today's conversation, and it is not one that, in my view, is warranted by the views who which Toobin affixes it; and (b) Toobin holds himself out as, and sometimes is, a serious commentator (not just a partisan) on the Court, the Constitution, and the law, and so should know better. Anyway . . . what's wrong with "conservative"?

Dave -- Thanks for the comment. I guess I'm resisting (but maybe I'm kidding myself) the claim that those of us who "staunch[ly]" oppose Roe would or do necessarily tar all those who support it (or who support abortion rights) as "extremist." (Certainly, I wouldn't and don't. "Wrong" will do.) I *do* think there are "extremists" on the pro-choice side . . . and on the pro-life side . . . but it's hard to spot them simply by using a "Roe . . . right or wrong" lens.

I don't think I disagree, in principle, with what you say in the second paragraph (though I think the numbers on the two ends of your spectrum are a bit bit to be "extreme"); but, there's no necessary connection between thinking "Roe is way, way wrong" and "abortion should always be illegal, regardless of context", right?

On "extreme": I seem to remember, during the Roberts confirmation, a blogger -- maybe it was Jim Lindgren -- figuring out that about 3% of the people in America subscribe to the portfolio of views proposed and supported by the editors of the New York Times. So . . .

Posted by: Rick Garnett | May 21, 2008 5:14:34 PM

Hi Rick,

The first point is kind of a conundrum. One could say, as Orin suggests, the extremity of any given view is purely relational. A staunch opponent of Roe would likely tag the opinion's supporters as extremists and vice versa. But I'm not sure that social consensus necessarily means a view is not "extreme". If it's possible to say that there's a spectrum of possible political outcomes ranging from most conservative to moderate to most liberal on any given issue, and consensus forms around one end of the spectrum of the other, then I think we can say that view is "extreme", even if it's widely shared and even though we got there through democratic debate/process.

So if the range of positions on the legality of abortion range from "abortion should always be illegal regardless of context" to "abortion is legal at some times and not others" to "abortion should always be legal regardless of context", then I think it's safe to call two of these views "extreme", regardless of whether one reaches them reasonably or how many people share the belief. Nor do I think the term should be regarded as entirely pejorative; it means only that one has a very strong opinion. That said, in the modern legal lexicon it's one of many buzzwords that has gone from innocuous to poisonous (see also: elite, liberal), so I can certainly see objecting to its use (as Toobin's).

Posted by: Dave | May 21, 2008 4:18:50 PM

I say tomato, you say activist judiciary. It seems a little tedious to take Toobin to task on whether McCain's telegraphy on judicial nominees deserves Toobin's "most extreme" label. Toobin's point is that McCain, often considered a "maverick," center-of-right unifier, has chosen to use the issue of judicial nominations to reassure his party's base of his conservative bona fides in preparation for the general election at a point when many on the left won't be looking. To do that he's using a certain kind of rhetoric that doesn't seem particularly characteristic--it's not very centrist, or even just to the right of centrist. Does that make it the rhetoric of the "extreme" right? Maybe you'd prefer the "very" right? Or "most of the way" right?

Posted by: Paul | May 21, 2008 4:07:17 PM

"Conservatives would ban abortion entirely...The proposed conservative consensus is that abortion is tantamount to murder and must never be performed. Those are extreme positions."


Perhaps. But to the extent we're referencing the "conservative" justices possibly appointed by Sen. McCain, you've wholly misrepresented their views.

The "conservative" view, judicially, is not that the Constitution prohibits U.S. citizens from having abortions (although, an expansive reading of the 14th could allow for such). Rather, it is that *the states are free to decide* whether or not to ban abortion.

In this light, then, your point that the "extreme" viewpoint is the one making a "complete break with the existing order" misses the mark. Conservative, Federalist Society type judges aren't trying to "change" anything substantively, other than who decides whether abortion is legal.

Posted by: Lawyer | May 21, 2008 2:49:19 PM

I think in these sorts of conversations, and in writing like Toobin's, an "extreme" position is one you and your friends strongly disagree with. If lots of people disagree with you and your friends, it merely reveals that lots of people out there are extreme.

Posted by: Orin Kerr | May 21, 2008 2:38:19 PM

Within the cosmology of any set of opinion, the belief set that results in the most drastic change is extreme. The current state of the law and of our society is that non-minor women are free to get abortions at any time and for any reason. Abortion providers may perform abortions without any criminal consequence. The consensus is that abortion is a sad practice but one that is an individual woman's choice.

Many people believe that the decision in Roe v. Wade was tenuously reasoned. But this is not the sum of the conservative argument. Conservatives would ban abortion entirely. This would mean that women were entirely unable to get abortions for any reason and abortion providers would face criminal prosecution. The proposed conservative consensus is that abortion is tantamount to murder and must never be performed.

Those are extreme positions. They are extreme because they represent a complete break with the existing order and they would result in drastically different circumstances for millions of people in this country.

A moderate position is that advocated by most Democrats, including Bill Clinton, Hillary Clinton, and now Barack Obama. In a phrase: safe, legal, and rare. Abortions should be widely available, women should face no interference in obtaining them, doctors should not be dissuaded from providing the service, yet abortions should be avoided when possible either before pregnancy through the education and use of contraception, or afterwards in encouraging adoption.

We also have to observe that the conservative argument with Roe doesn't stop there. They don't like Griswold either. Extremist Catholics don't believe in birth control and would like to stop its sale. These are extreme, extreme positions.

Toobin's article is important because most Americans do not realize that John McCain opposes the right to choose, and are unaware of his many other extreme stances. We are lucky that there is very little chance that John McCain will ever be in a position to appoint federal judges.

Posted by: Bart | May 21, 2008 2:02:09 PM

Hi Dave. And, fair enough. Still, the fact that reasonable people hold X view seems at least relevant to the question whether that view can usefully or should fairly be characterized as "extreme". (Can a decent person hold an "extreme" view? Sure. Is a view held by plenty of thoughtful and reasonable people helpfully described as "extreme"? I don't think so.) It's hard for me to see why we should embrace an understanding / definition of "extreme" that is triggered by opposition to Roe.

But, I take your point: McCain is likely to nominate judges like those nominated by Bush. And -- putting aside the tendentious characterizations of some of the cases referenced in the essay -- because Toobin (like many others) doesn't like the views of, and results reached by, judges nominated by Bush, he and they have a good reason not to support McCain.

Hope you are well . . .

Posted by: Rick Garnett | May 21, 2008 1:20:15 PM

Regardless of whether one agrees with Toobin's characterization, there's no real tension between any these adjectives--it's certainly possible for "decent, thoughtful, informed" people to also hold "extreme" opinions. In any event, though, I think Toobin's "most extreme" phrasing is unfortunate b/c it distracts from his central point that no matter what kind of "maverick" you may think McCain is, when it comes to judicial appointments, you're going to get much the same as with Bush II. Whether you like or dislike that result, it's a point worth making and one that seems right based on the 5/6 speech.

Posted by: Dave | May 21, 2008 1:04:24 PM

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