This Harvard Law prof thinks constitutional theory is a terrible way to pick a judge

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the A BA Journal’s Lee Rawles, and today I’m joined by Mark Tushnet, author of the book, who Am I to Judge Judicial Craft Versus Constitutional Theory. Mark, thanks so much for joining us.

Mark Tushnet:

Thanks for having me.

Lee Rawles:

I think your name is going to be known to a lot of our listeners, but for those who aren’t yet familiar, can you tell us a little bit about who you are and your background with constitutional law?

Mark Tushnet:

Sure. So I am now retired from the faculty of Harvard Law School. I taught at University of Wisconsin Law School in Georgetown and ended up at Harvard. I retired when the pandemic hit. As it happened, I started out clerking for Justice Thurgood Marshall and then started teaching immediately and I got into constitutional law pretty much early on. So when the early mid 1970s and I’ve been paying attention to the Supreme Court and the Constitution since then.

Lee Rawles:

I want to read a sentence from your book that really kind of I think captures the message you’re meaning to send with this. We should look for judges who are likely to display good judgment in their rulings, the empirical argument, and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole and maybe we should worry a bit if they think they have such a theory, the normative part. So that seems like a bold statement coming from someone who has spent their professional life all around constitutional theories. And I’d love to dive in and get more from you on that message and how you came to write, who am I to judge?

Mark Tushnet:

So I had this idea of trying to figure out what the qualities of great justices were and I looked around for, I didn’t want to come up with my own list of who I thought were great judges because that would inevitably be infected by my political views. So I looked around for lists that other people had compiled and I found a bunch, there’s actually sort of small literature on lists of justices and I use one that was published in 2003 that had sort of the 10 greatest justices of all time. It seemed to make sense to me. It didn’t seem to have obvious political biases. And then I looked at who those people were and what their backgrounds were and what you might say about their qualities. And I was struck by two things that are captured in what you read. The first is that they were not theorists.

They would draw on whatever materials that seemed at hand that seemed to help them solve the problem that they were the constitutional interpretation problem they were dealing with. They would say things that could resonate with other constitutional theories, but they were eclectic. They picked and chose the ones that seemed to make sense for the problem they were dealing with. And the other thing that struck me was that they had what I call wide experience in life. And in particular they were not, with a few exceptions, they were not merely judges as part of their career. So the easiest example is John Marshall who comes out on the top of August, the first great Chief Justice, he was a military aide to George Washington. He was a member of Congress, he was Secretary of State and then he became a Justice Earl Warren’s on the list. He was governor of California when he was nominated to the Supreme Court.

Lee Rawles:

I actually found as a journalist, I often tell students who are looking to go into that career that the most valuable time you spend may not be in the basement of your university’s daily newspaper offices. It might be the side job you have. I think that it’s extremely valuable to have a lot of different experiences to inform your work as a journalist beyond just, I worked reporting stories and that really struck me too with your list. I wanted to read out the five characteristics that you came up with in looking at that list of who is considered the great justices. There’s longevity and age, location and political time, prior experience in public life, not a judge. You capitalized that. I think I should note that. And then number five, intellectual curiosity. So I find it fascinating that you took these characteristics and as you said, you looked them and you said in nowhere is there adherence to a very specific judicial philosophy because certainly in the decades that I’ve been paying attention during Supreme Court justice hearings, a lot of emphasis is now placed on, well, what is your judicial philosophy? And one that many people are familiar with is originalism. Why do you feel that adherence to a philosophy became such a touted thing? What do you think the problems are with that?

Mark Tushnet:

Well, the intellectual history of theory as part of a qualification or judging has something to do with the conservative reaction to the war in court, which took the form of saying, well, they were just implementing their own policy judgments in the guise of interpreting the constitution. How can we come up with an alternative to that? And interpreting the constitution in light of its the current version is original public understanding was the alternative. Originally was promoted as a political counter to what was seen as the willfulness of the Warren Court and it settled into the Republican party’s agenda for the courts. That’s where it came from. There’s a specific history for it. Your second question is what are the problems with, I want to say with constitutional theory as a whole, there are a lot of books about problems with originalism and we can talk about that, those problems if you want.

But my concern actually is more with the theoretical orientation orientation to theories of interpretation. And my concern is that they actually narrow the way undesirable, narrow the way judges think about things. The point about wide experience, about knowing what the world is like and good judgment is that when you operate in the world as a whole doing various jobs, meeting voters, if you’re a politician or for Oliver Wendell Holmes almost getting killed on the battlefield, you experience the way ordinary people experience the law and that helps you understand what you’re doing when you are interpreting the Constitution in a way that will play itself out in ordinary people’s lives. And all of that has nothing to do with constitutional theory. It has something to do with coming to understand how the world works and how people experience the world.

Lee Rawles:

And you make the point that, as you said, a lot of the current focus on a constitutional theory could be based off of reactions to prior courts. And you look in particular at the court in the 1930s and say they wouldn’t have understood our obsession with w what’s your constitutional theory? You brought up Justice Charles Evans Hughes and you said he would’ve been baffled, I believe by the question, what constitutional theories do you use? Perhaps after resolving his puzzlement, he would say something like, I try to interpret the Constitution to make it a suitable instrument for governance in today’s United States. So it is interesting getting that historical perspective because again, I am used to and grew up in an environment where we do stress. Well, there’s this constitutional theory and it seems like perhaps that is a little bit of revisionism. So when you went back and you looked at the earlier years of the Supreme Court when it came to constitutional theory, what did you find?

Mark Tushnet:

So first I should say I wrote this enormous book that was published three or four years ago about the Hughes Court from 1930 to 1940 basically. And so that’s the period I am most comfortable talking about, but I know about other periods of the court, of course. So what I was, I dunno how to put this struck with is that they said things that we could translate into contemporary constitutional theory terms. One of the opinions that I write about in the book examines the background of the common law disqualification of jurors for sitting in cases where their employers are involved. And you can talk about that as an originalist like opinion, but it’s also contains important policy analysis. And this was a written opinion written by Hughes. It involved the disqualification of federal, federal government employees from sitting on juries in the District of Columbia.

And what he said was basically the government’s gotten so big that you couldn’t get a decent jury in the District of Columbia if you excluded everybody in a criminal case, everybody who was employed by the federal government, that’s a straightforward policy judgment argument. He thought it made sense to as a matter of governance, as I said. And so when you look around, you see snippets of theory or proto theories or something like that, but they’re not theory driven. They’re driven by what I think of as the good sense of a lawyer socialized into Thinking Like A Lawyer about these constitutional problems.

Lee Rawles:

Well, we’re going to take a quick break here from our advertisers when we return. We’ll still be speaking with Mark Tushnet about his book, who Am I to Judge Judicial Craft versus Constitutional Theory. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Mark Tushnet. And I want to get into the judicial craft part of this because we’ve talked a little bit about some of the perhaps pitfalls of relying on a theory that might have you overlook, well, what are the real world outcomes going to be? So what are we proposing judges should do instead and what do we consider judicial craft?

Mark Tushnet:

That’s a really important and interesting and difficult question partly because what counts as being a good lawyer changes from time to time or changes over time. You can see that in the different ways judges write their opinions or lawyers shape their arguments. But there’s a sort of background of what my late colleague Charles Reed called what lawyers know that it’s part of what happens when you learn to be a lawyer. It involves seeing analogies between one problem and another problem. You’ve seen a similar problem before and you saw how it was solved and you think, well this problem that I’m dealing with now is sort of like that one. It’s different in some ways, so should we adjust the solution? And so that’s reasoning by analogy or a distinguishing precedence, but it’s the lawyers think are taught to think about how things fit together, what the relations among different ideas are, and that’s what judicial craft is. It is knowing how to put a legal argument together in a way that I say hangs together. Juris prude, Carl Lewellen once referred to the, I think it was the voice of singing reason. When you read a well-crafted opinion, you say, well, maybe I don’t agree with the outcome, but I see where the argument comes from and how it fits together.

Lee Rawles:

And you identify the characteristics that you think make up a well-crafted opinion as it’s transparent, dominated by legal considerations. It deploys a standard set of legal moves, it keeps its audience in mind and it’s respectful of contrary opinions. All of those are interesting pieces. I want to touch on the respectful of contrary opinions piece for a second. Why do you think that’s so important in a well-crafted opinion?

Mark Tushnet:

Because you’re dealing with people who are simultaneously losing the case that you’re deciding, but are also continuing members of the political community that you are trying to hold together or that you think the constitution holds together. And there’s this whole, I don’t know whether a joke or not, don’t go away mad but go away. You really don’t want to convey that sense. You want to convey a sense that I understand why you might be disappointed in this outcome and here’s why. I think overall the world’s better if the other side prevails, but you are still part of the community even though we’re rejecting a claim that you think is really important.

Lee Rawles:

As I was reading, who am I to judge? I could think of a number of different audiences for the book. One would be if you are already a judge, thinking more deeply about your craft, the importance of theory to what you’re doing every day, I thought that it could be written for people whose job it is to select judges, to appoint them, to elevate them to these positions. And I thought it could be written for citizens who want to understand a little bit more lifting the hood. What are people actually considering when they make these monumental decisions that can impact all of us? So now that I had all those thoughts, but who were you trying to reach with? Who am I to judge?

Mark Tushnet:

So I framed the argument as if you were a president, what should you look for in trying to find a great justice to nominate a Grace Justice? But of course there’s one president at a time and I wanted crudely to sell more than one book. So that was just a rhetorical framing. My real audience and my real imagined audience was sort of an interested, informed non-lawyer citizen who was interested in the constitution but was not trained as a lawyer. And the reason I did that was partly for reasons that you suggested earlier that the contemporary discourse about picking judges is dominated by what’s your jurisprudential philosophy, what’s your constitutional theory? And I thought that ordinary citizens of the sort that I’ve described would misunderstand what the Constitution was and should be doing for us if that’s the way what the ordinary citizen understood the judicial selection process or understood who judges should be.

Lee Rawles:

And I absolutely understand the siren song of, well, let’s pick by theory because theory, although theories change and adapt all the time, it seems like putting one’s faith in a solid theory would be more reliable than in a changeable human person. But the changeable human person is who we select to sit on the court. And there have been justices in the past who were selected with a thought, oh, well, they will be this kind of judge and they most decidedly were not. It is difficult to select a human to a lifelong position with any certainty that that person will do things that you like. So I see why this idea of, well, but if they have a theory that they abide, by surely they will be more predictable. Do you think that’s true or accurate? Why wouldn’t that be a better way to pick a justice?

Mark Tushnet:

So that is what theory is touted to do as doing that is it substitute, it provides a substitute for what Justice Scalia wants called the personal predilections of individual justices to write their personal predilections into law theory is supposed to constrain them from doing that. There are two problems with that, several problems with it. One is internal to any theory. I spend a lot of time on originalism, but I talk about others. There’s a lot of discretion about how you formulate the theory and how you apply it in particular cases. So even if you say, I’m going to be an originalist, you still have a fair amount of room to exercise your, I don’t like this phrase, but it’s justice Scalia’s, personal predilections. Second, there’s a bunch of constitutional theories out there rattling around all of them having decent intellectual credentials. And so somebody will say, well, yeah, I’m an originalist.

And another person will say, well, I’m in favor of one theory, has this name democracy reinforcing. I’m in favor of that. And that can strange. Each of them will say, the theory constrains me, but the choice among the theories is not constrained. And then finally there’s the, you can’t keep the, we have no mechanism to guarantee that. Again, to put it crudely, they’ll keep their promises when nominated, they’ll say, and maybe honestly, almost certainly, honestly, here’s how I think about the law right now, but over time they may and almost certainly will experience problems and cases that will bring that way of thinking about the law into question and they will change. It’s not in bad faith or any, it’s natural human development. They learn in some ways, that’s why I say good judgment and intellectual curiosity and wide experience matter. Those characteristics are characteristics of someone with an open mind open, not merely to, it’s not closed, I know automatically what the answer is, but it’s open to seeing how the world changes and trying to assimilate that into the way you think about the law.

Lee Rawles:

Another thing that you bring up in the book and we haven’t really addressed yet is theory doesn’t address how good of a manager someone might be and those people who are listening, they might know that it’s often talked about how one of the judge’s largest jobs is Courtroom manager and if you’re on the Supreme Court, you have a staff of clerks and if you’re the chief justice, you have to figure out the balancing between these nine justices. There is a lot of management that goes into the job and your constitutional theory might have zero bearing on how good of a manager you would be. So I thought it was interesting that you brought that up. Could you talk a little bit more about that?

Mark Tushnet:

The one thing that I find most interesting in that part of the discussion is that the public discourse, newspapers writing about the court say Justice X in her opinion for the court said thus and so we know that the opinion for the court that comes out under the name of Justice X is the product of a complicated drafting process, most of which happens within the justices chambers and most of which is done by the justices law clerks, not by the justice herself or himself. That varies over time. Younger justices, newer appointees do more of their own work than older appointees. The people who’ve been on the court for a long time come to understand that time management matters and they can do their more important work by delegating more to their law clerks.

Lee Rawles:

You also point out that the development of a judicial voice, once you have enough opinions out there, people understand your writing style and so it’s easier to anticipate what you as a justice may want to be communicating. You clerked for justice, Thurgood Marshall. I would love to hear a little bit about your experiences as his clerk and how that informs how you think about the court and how it manages itself.

Mark Tushnet:

I have to say two things preliminarily. First of all, this was 50 years ago and my memory is not all that great about this. And second, I was way too young to appreciate the experience. He was a great man and a great lawyer, but there is always the no hero, no whatever, no person is a hero to his butler kind of point, which is a comment about the butlers more than it is about the great man. So all that is a qualification. I learned a lot about how the court operates and even though it’s 50 years ago, lots of the stuff that I’ve learned seems to continue to be true, such as the role of court clerks in drafting. But what I really learned was that his strength was not as a theorist and not even, I think as a careful judicial craft person, we did essentially all of the drafting of his opinions.

I don’t think that’s a problem, but other people might. But what he had was superb judgment. He could see, he could read the briefs in areas that he didn’t really know much about beforehand and he could see what the right answer was for the problem. He wasn’t always right I want to say, but he knew how to think about the problems that the court was facing and most, the vast majority of cases, in my judgment, he saw what the right answer was without, again, I want to stress without deeply theorizing it. And the reason was because he was a man of as wide experience as anyone in the 20th century on the Supreme Court.

Lee Rawles:

Well, we’re going to take another break to hear from our advertisers When we return, we’ll still be speaking about who am I to judge judicial craft versus constitutional theory. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Mark Tushnet. And Mark, I would love to talk about turmeric. You have an anecdote in the book where you compare tweaking a recipe to use of judicial judgment and the way you think through things and I would love for you to walk listeners through that.

Mark Tushnet:

Yeah, so one of the arguments about originalism is that the constitution is like a recipe. Somebody, a family recipe. Somebody generations ago came up with this recipe for a soup that has been a favorite in the family for generations and you’re now the current generation and you want to make the same soup because it’s been good for the family. And you have the written instructions from for the Constitution 1789 or 91 or 1868. You have the written instructions from then and the question is, well, should you follow them exactly to the letter or are you authorized to improve the soup by tweaking it by substituting some spice? You say, I think I said turmeric, not that I know anything about this stuff.

Lee Rawles:

And I do have to say, mark, you suggested substituting cardamom for turmeric and yeah, those are some very different tastes, but the principle stance,

Mark Tushnet:

Right, right. Okay. And are you authorized to do it? And if you do it, is it the same soup that you’re making? Is it a better version of the same soup Now it won’t always be. You can screw it up. You can put in something that makes it taste terrible, but you can follow a recipe without doing every step exactly as it was done by the person who made the soup the first

Lee Rawles:

Time. Well, and the same ingredients that were available once upon a time may no longer be available or they might taste different. I think about the fact that apparently the original banana that people knew is not the variety of banana we have now. So okay then if you had a banana bread recipe that relied upon the taste of a banana that’s no longer available, what’s your alternative?

Mark Tushnet:

Right. So the idea would be to look around for what is available today that comes as close to replicating the flavoring that made the old banana bread taste so good and who knows what it might be. It could be some exotic fruit that I don’t know anything about. It could be, maybe it’s the carrots now taste the way or putting in carrots would contribute the same taste sensation today that putting in bananas did then, I’m just winging this here of course, but the point is that even a commitment to following the recipe written down generations ago, even you have that commitment. It’s not a departure from or betrayal of the original recipe makers design to do things that might improve the quality of what is basically the same product. So it is banana bread or it’s a version of banana bread. It’s not a key lime pie.

Lee Rawles:

Well, you talk a few times in the book about you bring up that a justice’s legacy might be based on their location in political time. You talk about eras shifting and you had a passage that made me nervous just as a reader, as an American citizen because change is scary. You said, we don’t treat the US Constitution as a set of recommendations about good governance. We treat it as binding law treat here is the relevant word. We could change our minds. You and I are talking on February 11th and currently there’s a discussion about whether or not we’re in a constitutional crisis with a balance of powers and there’s a lot of upheaval and consternation when you talk about how well we may entirely change how we treat the US Constitution. Again, it makes me nervous. Talk to me, mark, how do you want people to be thinking about this? Do you think it’s dangerous to change our idea of the Constitution as binding law? Do you think that there are opportunities, the present itself, if we treat it like you said, as more of a set of recommendations about good governance, when you look at the future and whether America’s a kind of turning point with the way we think about the law and the rule of law, what are you thinking about?

Mark Tushnet:

So that’s of course a very large conversation question that you’ve opened up

And we certainly don’t have time to deal with it here. I touch on it a bit in this book. I’ve written more about it elsewhere. My view is that how we think about the constitution is our decision and we can’t say, we can’t rule out by stipulation that we can’t demand by stipulation that we think about the constitutional only as binding law. I think some advantages and some dimensions to think of it as binding law, I think there are advantages to think of it as a set of recommendations. I actually tend to prefer thinking about the Constitution as a set of recommendations knowing that there are, we’re currently experiencing risks associated with saying, no, it’s not binding law. I personally think that we’re better off governing ourselves according to what we think is the best way to organize society. Then by pretending in my view that the decisions made a hundred, 200 years ago stick us with a particular way of organizing society. But we’re going to find out what we collectively, the people of the United States think the Constitution really means over the next decade or so.

Lee Rawles:

Well Mark, thank you so much for appearing on this episode of the Modern Law Library. If my listeners wanted to read more of your books, hear more from you, how could they do that?

Mark Tushnet:

I’ve written a lot. The answer is look my name up in your library,

Lee Rawles:

That’s T-U-S-H-N-E-T TouchNet

Mark Tushnet:

And see what titles attract you. The Constitution has recommendations, stuff that I just talked about is what I’m currently most interested in. I wrote about that in a book coauthored with a colleague from England called Power to the People Constitutional Law in the Age of Populism. And that was published like four or five years ago. So that would be my, to get my views about these issues. The best place to go, I should say my favorite book that I’ve written comes in two versions. One is a book called The Constitution of the United States, A Contextual Analysis, and the other is a sort of slim down version of that called Why the Constitution Matters. So those are the things I would recommend.

Lee Rawles:

Well, thank you Mark, and thank you to my listeners for joining us this discussion of who am I to judge judicial craft versus constitutional theory. If you have a book you’d like me to check out for a future episode, you can always reach me at books at ABA Journal dot com. And if you enjoyed this episode, please rate review and subscribe on your favorite podcast listening service.