Favoring Procedure Over Justice
A new book on the Supreme Court is a thinly veiled attempt to praise conservatism as high-minded prudence.By Dylan Matthews
June 22, 2009
(AP Photo/Pablo Martinez Monsivais) Judge John G. Roberts raises his right hand as he is sworn in before the Senate Judiciary Committee on Sept. 12, 2005.Princeton provost Christopher Eisgruber loves dichotomies. They are the modus operandi of The Next Justice, the very serious book he wrote about the very serious process of Supreme Court appointments. He takes pairs of opposing concepts—such as judge as ideologue vs. judge as umpire and ideological vs. procedural values—claims both as crucial and insufficient, and proceeds to call for a well-calibrated balance between the two. Triangulation as intellectual methodology is usually ill-advised, but given that The Next Justice is the only book I’ve seen get blurbs from both the The New Yorker and New York Sun, it appears to have served some purpose for Eisgruber.
The Next Justice’s Broderism runs deep. “There are important connections between moderation and the judicial role,” Eisgruber notes in the beginning of the book, and devotes another whole chapter to what he appears to think is a novel concept. But Eisgruber also wants to cultivate the image of a gritty legal realist, aware of the roles that power and political affiliations play in court appointments. “Judicial decision making, like legislative decision making, may be identifiably liberal or conservative,” he admits, “and it may require controversial choices among competing principles.” He may earnestly plead for modesty and impartiality from the Court, but Eisgruber does not want his readers to think him naïve.
And, indeed, he is not naïve. As he brags in anecdote after anecdote, and the entirety of the preface, he clerked for Justice Stevens, and thus has an inside view of the Court’s proceedings. No, to think Eisgruber naïve is to cut him too much slack. A naïve person would agree with The Next Justice’s conclusions about the need for impartiality on the court and the evils of ideological “extremism” or “rigidity” because he does not know any better. But Eisgruber does know better, enough to make one think his book is not so much wrong as it is deceptive.
Take the Eisgruber’s treatment of John Roberts. As an unapologetic fan of the chief justice, Eisgruber quotes statement after statement of Roberts approvingly. Roberts’ line about how being described as “results-oriented” is “about the worst thing you can say about a judge”? Eisgruber loves it. “The most basic rules and norms of the adjudicative process are designed to avoid outcome-oriented judging,” he agrees. He proceeds to none-too-subtly place Robert above some of the court’s most well-regarded justices.
“Nearly everyone, for example, seems to admire either William Brennan or Antonin Scalia,” he laments, concluding that perhaps we would “be better off with a Court bereft of such bold figures. Instead, he places his admiration with the apparently under-appreciated current chief justice. “John Roberts might have had an idea of this sort in mind when he told the Senate that judges, like umpires, have a ‘limited role’ and that ‘[n]obody ever went to a ball game to see the umpire,’” Eisgruber wrote.
Of course, Roberts’ actual record—two years in the making at the time of the book’s initial publication, four years at the time of the book’s reissue—belies such rhetoric. Jeffrey Toobin put it best when he noted, “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff”—a claim, I would add, that made it past The New Yorker’s notoriously rigorous fact-checkers. This year’s rulings only confirm the rigidity and extremism of Roberts’ judicial philosophy. Consider District Attorney’s Office v. Osbourne, the 5-4 decision written by Roberts that declared that prisoners have no constitutional right to potentially exculpatory DNA tests, even if they pay for the tests themselves. Whatever one’s views on constitutional interpretation, Roberts’ thoughts of keeping potentially innocent people imprisoned is hardly a “moderate” view.
Eisgruber doesn’t simply misunderstand Roberts; on the contrary, he understands him too well. The power of Roberts as a justice is in his ability to pass off right-wing extremism as a form of prudence, to appear as though he is simply being a fair “umpire” even when his every call favors the home team. The key to this technique is what Eisgruber calls “procedural values,” the purpose of which is to cloak profoundly ideological assertions about the law behind a thin veneer of impartiality and fairness. Procedural values, he writes, “might include, for example, the idea that all criminal defendants must have an opportunity to contest the state’s evidence against them, or the principle that courts should defer to Congress with regard to disputes about military matters or foreign affairs.”
Both of those values imply a political ideology, and indeed map very neatly onto the left-right political spectrum. To consider paramount the rights of individuals to challenge state’s evidence is to privilege individual liberty ahead of the prerogative of the state to ensure public safety—that is, it is a liberal (or civil libertarian) view, as its practical effect is to empower individuals and weaken the state. To consider the rights of the military to, say, discriminate against gays and lesbians more important than the rights of gays and lesbians themselves is to dismiss LGBT issues for the sake of reverence for the military—a recognizably conservative viewpoint, as the practical effect is to oppress gays and lesbians and strengthen the military’s political clout.
In noting this, I am surely disappointing Eisgruber. After all, I am analyzing his beloved “procedural values” based on “results” and “outcomes.” I am violating “most basic rules and norms of the adjudicative process.” I am guilty of the “about the worst thing you can say about a judge,” and unabashedly so! So be it. I do not think it crass or illegitimate to consider the law based not on Eisgruber’s lofty principles but upon the real effect its interpretations have on real people. If to do so is “partial,” so be it. I would rather be partial toward justice than neutral in the face of its opposite.
Dylan Matthews is an intern at The New Republic and a staff writer at Campus Progress. He will be a sophomore at Harvard University in the fall.
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