I have due respect for Erik Jaffe, given his accomplishments. But I find both the substance and the strenuousness of his posts over at the Volokh thingamajig (a group blog — whoever heard of such a thing?) a little baffling. I’m sure I won’t do him proper justice — in particular, I make a few assumptions about his arguments that may be incorrect, and I am open to correction — but a few things strike me about his posts.
First, there is the “shocked, shocked to find gambling here” attitude. Jaffe complains that the Senators keep harping on “policy based” concerns rather than focus on questions of judicial policy. Now, I am reasonably sympathetic on this point; of course such affairs are always on the shallow level, and this hearing has been no exception. A number of Democratic Senators (and Republicans too, probably, but I have not listened closely enough to say) certainly have acted as if it is the Court’s role alone to see justice done, and not the state or federal legislature’s role; I noticed this in questioning yesterday on the Plyler v. Doe case. But why the shock? Furthermore, while the questioning has mistaken social for judicial policy, it’s not clear to me that this is so objectionable. The Senate’s realm is the realm of policy; it is a democratic institution; this is its last big chance to exact any pressure on the nominee; so if its members want to push the nominees on policy matters, they are entitled to do so. Nothing about this seems terribly inconsistent to me with the history of the nomination process.
Second, Jaffe is adamant that the phrase “scrupulous adherence to the law and the Constitution” is not question-begging, even on the difficult cases; what he seems to mean about this is that there is simply and clearly a right way of interpreting the Constitution. He agrees that many cases are not difficult; on those cases, on which the Court is often unanimous, differences of interpretive approach don’t appear to make a difference, which suggests to me that craft constraints are often more important than interpretive method. But he seems also to believe that there is a lawful way to interpret the Constitution — namely, text and history, period, and I suspect with a heavy reliance on history. It seems to me that the fact that interpretive approach doesn’t matter in so many cases, as he impliedly concedes, suggests that craft constraints are a far more reliable source of stability and integrity in legal interpretation than history, with all its uncertainties and ambiguities and the relative lack of expertise of the lawyers (not historians) who serve on the Supreme Court. In any event, even if history were a stable interpretive source, I am still unconvinced that it is the clear sole appropriate method of interpretation. So it seems to me his analysis is question-begging.
Third, he suggests that in the difficult cases “that cannot be answered by text, history, and other relatively concrete factors, there are still numerous rules of thumb or cannons of construction that guide a judge in resolving such uncertainty. To the extent such cannons are part of the established precedents, they too help reach the ‘correct’ answer even absent certainty from text or history.” (He uses “cannons” more than once; all is not well in Spellcheck-land. Note also that in the next sentence of his post, he suggests that precedent is also a constraint in difficult cases; again, if so, he need not be as strenuous about the importance of history, nor impliedly dubious about the reliability of non-originalist judges.) Now, one need not swallow Llewellyn hook, line and sinker to acknowledge that the canons are imperfect sources of interpretive guidance at best. I guess what strikes me about this is that Jaffe seems to suggest that there are almost always “correct” answers, and therefore that an interpretive methodology that does not acknowledge this is lawless or misguided. But if the most difficult cases ultimately rely on “rules of thumb” and canons of construction, then there is a lot of play in the joints — perhaps even enough to justify the Senators’ result-oriented questioning. And ultimately, the difficult cases will rely on lawyers’ craft constraints — textual analysis, precedential analysis, etc. — rather than bigger questions of interpretive methodolgy. So it seems to me that the question whether judges can be faithful to the Constitution has far less to do with whether they buy originalism and/or textualism, and far more to do with how well and how much they are schooled in the skill set that is most appropriate for judges — the judicial craft.
Posted by Paul Horwitz on September 16, 2005 at 01:47 AM
Comments
I don’t follow your second point about “question begging.” Rather than illustrating question begging, you acknowledge that you simply disagree with his characterization of “law and the Constitution” as a sort of formalist, gapless and objective system. Question begging (petitio principii), however, occurs when the initially stated point–here, the notion that one can “scupulously adhere to the laws and constitution”–is later treated as already established in order to support some new point which, like the first point, has not been established. This leads to the use of the initial point to support the truth of itself. I don’t see this circularity in Jaffe’s phrase or even, assuming your reasoning is correct, in his view that historical interpretation is reliable. Have I misread you?
Posted by: Brian | Sep 17, 2005 2:15:20 PM
As to the substance, I think Jaffe’s conclusion that there are pretty much always “correct” answers in Supreme Court cases is … well, pretty obviously incorrect. The legal realists and crits may have underestimated the number of “easy” cases, but they were certainly right about “hard” cases.
Posted by: Joseph Slater | Sep 16, 2005 1:52:39 PM
I agree with the above commentator. Correcting a blogger’s spelling in general is poor form. But correcting the spelling of Mr. Jaffe, who graduated first in his class at Columbia Law and clerked for Justice Thomas seems a especially silly, if not petty. Some coup!
Posted by: Mike | Sep 16, 2005 1:51:27 PM
Yes, correcting someone’s spelling in a BLOG post is indeed engagement on a very high level.
Posted by: John Stuart | Sep 16, 2005 12:41:02 PM