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10/24/2017

Jeffrey Toobin: Originalist Assassin
Mike Rappaport

Recently, Ann Althouse had a great post criticizing Jeffrey Toobin’s account of oral argument in the Supreme Court's political gerrymandering case. Toobin had criticized Neal Gorsuch, portraying him as violating norms and as ineffective. But Althouse makes a strong case that this is largely in Toobin’s imagination. Sadly, this is not the first time Toobin has unfairly criticized an originalist justice. In this past post, I criticized Toobin’s unfair attack on Justice Thomas’s criticism of nonoriginalism. Apparently, Toobin sees his role as in part attempting to persuade the New Yorker’s audience that originalists are just so wrong.

What did Toobin have to say about Gorsuch? First, Toobin does not like that Gorsuch raised the question how the Supreme Court could justify holding political gerrymandering unconstitutional.

According to Toobin:

The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries; of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.

I find it hard to be sympathetic with Toobin here. That Gorsuch employed a rhetorical strategy used by originalists is no criticism. In fact, in a case like the political gerrymandering case, where very few sympathize with such gerrymandering, arguing that the constitutional text does not allow this is both the strongest rhetorical strategy and the correct reason for not deciding the case to restrict such gerrymandering.

And that some of the other justices believe—or at least claim to believe—that their opinions (which are not derived from the constitutional text) nonetheless actually involve an “interpretation” of the Constitution is no reason for Gorsuch to accept that argument. Certainly those justices hardly refrain from calling their actions “interpretations” of the Constitution because originalists like Gorsuch don’t agree with that description. Moreover, this claim of the nonoriginalist justices is weak: their nontextual opinions are not an interpretation of the Constitution, but simply “constitutional law.”

Toobin then describes Ruth Bader Ginsburg as if she somehow destroyed Gorsuch's argument. But Toobin cannot do this without seeming to violate journalistic standards. He describes Ginsburg's actions based, not on observation, but on his impressions, and perhaps imaginary ones at that.

Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal.

In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.) (emphasis added).

But as Althouse writes:

Might have been . . . seemed to . . . Are we in fantasy land? I wasn’t there but either an audible woo echoed or it didn’t. And Gorsuch wasn't silenced: He was the next Justice to ask a question. But speaking of feeling as though you’re back in high school, Toobin sounds like a schoolboy muttering “oh, burn.”

The weakness and unfairness of Toobin's attack here (and against Thomas) is upsetting. But I suppose there is a good aspect to his attacks: they suggest that Toobin is worried about originalism and that it may come to replace the jurisprudence of nonoriginalists like Ginsburg.