The Virtues of Uncertainty
By Jeff BleichJune 21, 2014
Uncertain Justice by Joshua Matz and Laurence Tribe
PICKING UP A BOOK entitled Uncertain Justice: The Roberts Court and the Constitution, it is reasonable to assume that the book is critical: the title promises to damn the Court as not reliable in delivering justice, or, at the very least, as a little wobbly and tentative when it does justice. It’s a tantalizing title, since there is nothing more appealing to legal pundits (and by extension book publishers) than a scathing critique of a court that has lost its way. The fact that one of the authors, Professor Laurence Tribe of Harvard Law School, is among the nation’s most celebrated legal scholars raises the stakes that much more.
But if that’s the thrill ride you’re expecting, forget it; the authors, Professor Tribe and recent Harvard Law School graduate Joshua Matz, have a different idea. If anything, their point is just the opposite. Their inability to easily pigeonhole the Court’s approach, they say, means that the Court is a good institution in good hands. While spotting trends and nuances in the Court’s decisions, their conclusions are respectful. They seek to debunk not the court but sound-bite journalism, and show that all nine justices are very thoughtful and conscientious jurists, whose various perspectives reflect reasonable and sincere expressions of competing constitutional values. Not the sort of point likely to light up the switchboard at Fox News or MSNBC.
It is a sad statement on the times that the authors seem brave to write a book that claims that “the Justices — including the ones with whom you vigorously disagree — are not political hacks who are indifferent to their duty to fairly interpret Constitution.” But you can see why the authors feel compelled to do so. About the only opinion that doesn’t make it onto the airwaves anymore is the notion that all nine of the Justices are offering considered views and doing their jobs well. Tribe and Matz’s (mostly) fair and balanced review seems to be an effort to protect the Court from the kind of corrosive public distrust that has impaired the ability of Congress and the executive branch to function.
Tribe is a particularly effective messenger for encouraging a kinder, gentler debate about the Court and its justices. Once considered a possible nominee for the court himself, he has argued dozens of cases before SCOTUS (including representing Al Gore in Bush v. Gore), and he has weighed in publicly at times as a center-left political pundit. In 1991, on the eve of Justice Thomas’s nomination, Tribe’s New York Times editorial, for example, warned of the possibility that Justice Thomas would likely take the Court in a “troubling direction” by reviving “natural law” ideas that had been discredited decades earlier. In this book, however, Tribe condemns critics who “complained, unfairly and incorrectly, that Thomas wasn’t up to the task.” Rather than joining the chorus that derides Justice Thomas for failing to speak at oral argument, seeing it as proof that he’s inattentive, Tribe believes Thomas’s explanation that he stays quiet because he is both polite and introverted. Similarly, in the past, Tribe took Justice Scalia to task for damaging the court with bombastic remarks, scolding: “I think Justice Scalia ought to reconsider the harm he does to the court as an institution when he indulges his famous wit in order to stab the president.” In Uncertain Justice, however, Tribe is content to note that Justice Scalia’s mode of expression “amuses and provokes the other justices” and has “earned him the title of ‘funniest justice.’”
Tribe and Matz’s approach is not simply a matter of politeness — they are making a point. Specifically, while it is okay for each of us ultimately to take sides in constitutional debates, we need to have the ability to give the “other” side its due. To help us, they take on the task of carefully reviewing various positions adopted by the Justices and explaining how — as a matter of both fact and history — each position has a credible pedigree. As the book’s case studies reflect, the Constitution actually contains a host of potentially competing values; and people of good will and reason can honestly come to different conclusions about how they should be weighted. In the Guantanamo cases, for example, the government’s need to provide order and security comes up against its duty to ensure liberty, or equality. There is no simple rule in the Constitution for reconciling competing values or deciding which takes precedence. The authors thus take us through some of the “hot” issues before the Roberts Court — race-conscious legislation, Obamacare, campaign finance, free speech, gun regulations — to put these debates in context and help us understand how a conservative majority Court could uphold the Affordable Care Act and invalidate a federal law because it refused to recognize lawful same-sex marriages. Although Uncertain Justice occasionally reveals some preference, the overall effect is to reassure us that the Justices’ views reflect sober thought and a valid struggle to resolve hard questions.
Now of course a book that only extols the reasonableness of the current court won’t sustain a reader’s interest for long. The authors manage to slip in critiques here and there. Regarding the First Amendment, for example, the authors fault the Court for tying the amount of protection a statement receives to the type of speaker or speech. They contend that the Court has been weakening free speech rights in cases that touch national security, or where the speaker is a student, prisoner, or public employee, while retaining robust protection for commercial vendors (invalidating restrictions on sales of violent video games to children) or people who express religious beliefs in disturbing ways (such as the loony Westboro Baptist Church, which cheers the deaths of soldiers at military funerals). The authors also warn that the Court has continued a trend of letting the government “bribe” people to forego important constitutional rights, despite the venerable doctrine of “unconstitutional conditions” (effectively that the government may not condition the receipt of a valuable benefit on the waiver of a constitutional right). Thus the Court in 1991 allowed federal healthcare funds for clinics to be denied if those clinics advised patients of the option to receive an abortion; the Roberts Court did likewise in allowing legal services funding to place restrictions on the types of arguments a legal aid lawyer could make.
But even in instances where it challenges the Court’s decisions, Uncertain Justice’s critique is done respectfully and with a light touch. For example, reviewing a number of cases that limited class-action relief and other remedies, the authors reveal distinct unease at the Court’s so-called “pro-business” orientation. However, they explain this in the most measured way: “On a review of the available data and a close reading of the Roberts Court’s opinions […] two conclusions stand up to scrutiny: this Court is unusually interested in business affairs, and a majority of its justices are receptive to legal arguments that tend toward deregulation.” This is not exactly fire-breathing outrage. And even then, you have to read through a lot of pages of cautious to-ing and fro-ing before you finally get to these quiet notes of discomfort.
In short, Uncertain Justice offers cogent analysis of recent cases, but its most marked characteristic is its refusal to demonize or sensationalize. That has value. When Senate (and in some cases vice-presidential) candidates run on claims that we need to rein in a rogue Supreme Court, someone needs to set the record straight. Diverse views are not a sign of hypocrisy, incompetence, or blind ideology — they are a sign of a functioning court. It was not that long ago that politicians and the public alike thought pluralism on the Court was a good thing. On the eve of the 1986 Democrat landslide in the Senate, Democrats still voted unanimously to confirm Justice Scalia. Today, the last five federal judges confirmed to the lower Circuit Court — most of whom were uncontroversial — each drew at least 40 votes against their confirmation. Against this backdrop, a book that helps us understand and respect different views can’t be bad.
Today, the Court is still the most respected institution in the federal government. But that isn’t saying much. It may be like being the most popular cafeteria in the hospital, given all the antigovernment sentiment. The Constitution, as a check on government, was intended to restore faith in government institutions for the American people. By giving the Justices their due, this book reminds us what it really means to respect the Constitution and its mission.
Jeff Bleich is a former United States Ambassador and Special Counsel to President Obama. He clerked for Chief Justice Rehnquist, and has written extensively about the U.S. Supreme Court. He is a partner at Munger, Tolles & Olson LLP.
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