In case you haven't noticed, the media attention surrounding each nomination to the Supreme Court seems to have no upper limit. With each new nomination, we're treated to an increasingly pitched battle over every possible way to analyze the nominee's credentials and suitability. Part of what I want to do in this space, and will try to do over the coming weeks, is break that down a bit. I don't want to just report on what people are saying, and the latest juicy Kagan tidbit to launch a thousand blog posts. Instead, I want to ask "Why?" What really matters here, and why does it matter? Are we arguing about the right things? Are we paying attention to trivia, or substance? When we are talking about a nominee to the Supreme Court, what is truly at stake?
Ta-Nehisi Coates gives me a great opportunity to get that project started:
How much weight does legal theory actually hold on how people think? What I mean is do people just decide they believe in certain issues and look for the theory of the constitution that bests supports that? Or is it the other way around? Is all this talk about "judicial activism" actually a real thing? Or is just something people say on CNN? What's more important--theory? Or your side winning?Well, it depends on who "people" are. With his initial question, if you're talking about average people, people who are not judges or legal scholars, the answer is: almost none. And why should legal theory matter? If you're a regular citizen, the law is a system designed to make living in society easier. If things are unfair, the law is supposed to make them fair again. That's what it's there for. Since the purpose of the law in the minds of ordinary citizens is to bring about fairness, it's natural that their idea of what the law should do flows from their ideas of what is fair. I don't think that citizens should have some reverent admiration for "the law" or "the constitution," especially because the bodies of rules and interpretations are changing all the time.
So for most people, yes, you pick a side, based on whatever code of ethics and sense of fairness you subscribe to, and you look for a way to make the rules fit. If the rules don't fit, you try to change the rules. But when it comes to the constitution, it's pretty hard to change the rules, so people are mostly left with trying to make the rules fit.
Call me naive, but I really do believe that judges are different. Not least because I've stood up in court many times before judges and watched their decision-making process. Much of the time, "your side" doesn't even come into it. I've seen judges pull out binders filled with printed-out statutes in almost every courtroom I've been in. They're looking to see -- what does the law say? What should I do? Of course, there are times when the law really isn't clear, and those are the kinds of cases that come before the Supreme Court.
It's also important to remember that a lot of the cases that come before the court aren't about abortion, or executive power, or the other high-conflict issues of the day. A great many of the cases are about procedural questions, administrative law, and the interpretation of federal statutes -- not the Constitution. Not to say that these cases can't be contentious -- many of them are. But many are just complicated legal questions that someone's got to resolve, and we see the proof in a slew of unanimous decisions, every term. Even in constitutional cases, there are a handful of unanimous opinions.
To get to the heart of Coates' question, between "theory" and "your side winning," theory will win out for the justices. And as we choose our next justice, it's important to remember that there is no one correct "theory." The legal theories you choose to support, throughout the length of your legal career, will often be the ones that lead to the kind of world you prefer. I think that judges in general, and Supreme Court justices in particular, are far better at separating their personal beliefs from their application of the law to a case. I'm certain that every single sitting justice has penned a decision whose outcome made them wince but that they felt was the correct one in the face of the options and framework presented to them.
The question is not whether theory informs decision-making or decision-making informs theory. It is: What kinds of theories are most important to you? And are those the theories whose application we want shaping our world?
--Silvana Naguib
