Jeffrey Toobin is a law professor, a consultant for various news media, and the occasional columnist for The New Yorker. In the July 27, 2009, issue of that magazine he helped me understand something that has puzzled me about Supreme Court justices as they approach the U. S. Constitution.
Toobin is talking about the questioning of Judge Sonia Sotomayor by the Senate Judiciary Committee in the last few days. I watched snippets of it, enough to see she didn’t say a whole lot. But that’s the plan, these days, if you’ve kept up with how these things work. Anything controversial like abortion or same-sex marriages, you just say, “Senator, since there are cases involving that subject before the High Court at the present time, I’m unable to answer your question.”
Anyway, back to Toobin.
Before the Senate Judiciary Committee, Judge Sotomayor said, “In the past month, many senators have asked me about my judicial philosophy.”
“Simple,” she said. “Fidelity to the law. The task of a judge is not to make law–it is to apply the law.”
Sounds good, right? But it’s too good, says Toobin. “Coming from a jurist of such distinction, this was a disappointing answer.”
And why is that?
“…it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.”
“In fact,” Toobin goes on, “Justices have a great deal of discretion–in which cases they take, in the results they reach, in the opinions they write.”
Then, here is the clincher: “When it comes to interpreting the Constitution–in deciding, say, whether a university admissions office may consider an applicant’s race–there is, frankly, no such thing as ‘law.'”