After Adam Liptak’s page one news story at the New York Times explaining why the First Amendment is a conservative weapon, Jeffrey Toobin joined the party. The party is the Democratic Party, and it’s the last ditch effort to feed the hysteria and undermine whatever trust and integrity there may be in the Supreme Court.
After all, they may not be able to stop Trump from nominating Justice Kennedy’s replacement, but they can sure as hell feed the frenzy to turn the Least Dangerous Branch into the impotent cabal of disingenuous partisan scoundrels. The Supreme Court has no army to force Americans to do as it rules, so it relies on our acceptance of the proposition that it is an honorable institution. Or in the alternative, that without trust in the legitimacy of the Court, we devolve to anarchy.
Toobin has made his choice.
It’s all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.
Some of us, lawyers, believe that we get to argue our causes, fight for our positions, persuade the justices that the law, the Constitution, the precedent, backs us up. We never assume we will win, but we sure as hell try our best. But then, unlike Toobin, we don’t know what a new majority will do. Toobin thinks he does. More to the point, Toobin tells us exactly what this new majority will do.
It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.
Does Toobin have the ability to see into the future? Does he have a time machine? If not, then what could possibly possess him to write such outrageous garbage that is clearly unsupportable?
There is, unfortunately, a completely rational reason behind Toobin’s apparent madness. Recognizing that there is nothing to be done to prevent confirmation of Trump’s nominee, progessives have no recourse other than scorched earth. Destroy the public’s acceptance of the Supreme Court as the final arbiter of the Constitution by using one’s pundit-cred to validate the hysteria that the conservative justices are all whores to their masters and unworthy of trust.
Attacking the legitimacy of the Court, as was done to Justice Gorsuch and will most assuredly be done to whomever the next nominee will be, is not only a lie crafted to feed the deranged, but will cause permanent damage to the institutional legitimacy of the Court. Many of you will shrug that off, albeit for different reasons than Toobin, because they may be final but the Court is hardly perfect.
That’s neither the point nor a viable answer. Of course justices have their own philosophies and perspectives, and we (particularly in criminal defense) often find them contrary to our views. But if the Court, the justices, lack legitimacy, then we’re left with a sham. Why argue if the outcome is pre-ordained? Why bother if the fix is in?
And if the Supreme Court isn’t legitimate, why follow its holdings? It makes trial by combat a far more legitimate means of accomplishing one’s ends of “justice,” when there is no other entity one can accept as the legitimate decision-maker.
No doubt Toobin will find legitimacy in the Court when the pendulum swings and the president isn’t a vulgar ignoramus, when the nominees are of the right view, even if they are substantively pretty much the same as the ones on the other team. But if the Court isn’t legitimate, then it isn’t legitimate for the good guys any more than for the bad guys. But Toobin doesn’t care. After all, this is war and it’s time to drop his bomb.
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