It's Complicated. And the Law of Rule

Like Judge Kopf, I was sent a copy of Uncertain Justice: The Roberts Court and the Constitution by a publicist at Henry Holt & Company in the hope that I would review it.  And like Judge Kopf, but without the initial internal debate about whether I should accept the book and consider reviewing it (I
had no hesitation at all), I did.  

Here's the basic idea:  The 9 folks who sit on the Supreme Court are all individuals.  While it's easy to say that Ginsburg, Kagan, Sotomayor, and Breyer are generally on the liberal side of things while the others are generally conservative, that's misleading.  They all shift sides at least occasionally, have their own perspectives, interpret the Constitution in their own distinct (yet overlapping ways).  Tribe and Matz lay it out in their Prologue (footnotes omitted).

Of course, an effort to understand the Roberts Court—much like an effort to understand the Court at any point in history—must reckon with more than just its results. The Court issues opinions in which the justices grapple with fundamental principles, argue over what the Constitution means and what role they should play in giving it life, and offer signals of where they are heading. These opinions open a window into the justices’ hearts and minds, giving us a glimpse of how they view the world. In many cases, the justices’ decisions, as well as their concurrences and dissents, also exert a magnetic pull on American life, both in their practical effects and through their bold interventions in our discourse. When Justice Sandra Day O’Connor warned that “a state of war is not a blank check for the President,” and when Roberts condemned the “sordid business” of “divvying us up by race,” they spoke to the public about constitutional values in ways that can’t simply be reduced to how they voted in those cases.
. . .
To that end, we do not adopt a standard convention in books about the Court: the “deep explanation.” We do not point to a strong left/right split, a partisan realignment, or a dispute over legal method and then argue that the life of the Court really boils down to that story. We do not claim that the Roberts Court is ultimately about a fight between “activism” and “judicial restraint,” both of which are largely useless terms (all justices are “activists” in certain areas of constitutional law). We do not pick one or two justices and insist that their agendas or struggles fundamentally define the Court. Nor do we distill the Court down to “liberals” and “conservatives,” explaining cases as the result of ideological blocs and agonizing over one or more inscrutable “swing voters.”
There is, of course, much to be said for these approaches to the Court. Executed well, each can reveal important patterns, draw out the underappreciated influence of a particular justice or idea, and identify overall coherence or contradiction in the Court’s undertakings. Yet writing about the Court is not like examining the physical universe. Whereas scientists can at least strive for perfection in their models, only a madman or a fool would ever claim to have fully explained the Court. At times, this realization can inspire an intense frustration: scholars of the Court inevitably feel as if they are trying to nail jelly to the wall, to borrow an apt phrase from Teddy Roosevelt. In the end, though, accepting this limitation is liberating. It points the way toward a more ecumenical mind-set that can shed valuable light on the Court by approaching it from many angles at once.

Focusing their attention on 9 subjects (Equality, health care, campaign finance, free speech, gun rights, presidential power, privacy, trading rights, access to the courts), Tribe and Matz parse Court opinions, concurrences, and dissents.  They explain how each of the justices applies his or her approach to the Constitution in this or that case.  They explain how all these are "hard" cases because there are competing interests involved.  That's so, and the cases are hard, even on the rare occasions when the cases - I'm talking here about the ones they discuss - result in complete agreement and no recognition that there are interests at stake other than those the Court honors.

There's much to be said for this. Tribe and Matz are lucid explainers of what really can be horribly convoluted and confused.  They're good at clarifying nuance, at making plain.  And they really don't oversimplify.  The Court isn't just a bunch of right wingers who occasionally break ranks and vote for some liberal idea. They understand that and convey it. Judge Kopf calls Uncertain Justice a "mature book for mature people."  Which isn't wrong.

If you don't follow the Court regularly, this is a fine introduction.  Would be law students might fruitfully read it.

And yet.

Tribe teaches law at Harvard.  He's been doing it for a long time.  He wrote the major general treatise on constitutional law.  Matz was his student.  They taught a course together.  Matz is, I read somewhere, going to be clerking for Anthony Kennedy next term.  Tribe himself clerked at the Court decades ago, and he's argued something like 35 cases there.

All that helps explain how it is that they understand the Court so well.  But it's also, I think, the genesis (or at least part of the genesis) of the problem.  Like the justices themselves, Tribe and Matz are insulated and isolated from the real world.  Where they live and teach and do their work, the Rule of Law rules.  

They see 9 brilliant men and women, striving every day to understand and apply the constitution, always acting in good faith and with utmost sincerity.  It's surely true, as they write, that none of the 9 ever says,

"I’m a [liberal/conservative], so what does that mean for my vote here?”

But that's so obviously true that it's trivia.  What does happen is that their character, their politics, their cultural preferences, their backgrounds, have enormous influence on their votes and their opinions. \ They decide the hard cases in exactly the opposite of the way law faculty mostly understand and law students are mostly taught.  

Here's the law school model.

• These are the facts.
• The Constitution says ___ and is best understood as requiring outcome ____ to these facts.
• Therefore ____.

Judges, lawyers, presidents, you dear readers, may disagree about just which thing the Constitution says is most relevant and (or) about what outcome best follows from whatever that provision is.  But the model holds true.  Or so they say in the law schools.

 There are, no doubt, times when that's just what happens.  In fact, it happens often.  Because most cases are easy and there's really no question how they'll turn out.  Those cases rarely end up in the Supreme Court.  Up there, and in the tougher cases down in the trenches where nearly all the real action is, it works like this.

• These are the facts.
• _____ is the outcome I'm going to reach because it's the only right outcome on this facts.
• Fortunately, there's some provision of the Constitution that can be crammed together with those facts to lead to that outcome.

I'm not saying it's conscious.  I doubt that it generally is.  But it's real. 

To fully understand the Court, you need to grasp that.  Unless you're a law professor (or law student). It's the difference, ultimately, between the Rule of Law and the Law of Rule.  And its the one thing about the Court that Tribe and Matz don't quite get.

As I say, it's a good book, an important one.  As Judge Kopf says, it's a mature one.  

Just with that caveat.  Uncertain Justice that way, too.