Tuesday, September 22, 2009

Jeffrey Toobin on Obama's Judicial Philosophy

Jeffrey Toobin's "Bench Press" in the September 21 issue of The New Yorker (you can link to it here) lays out a thoughtful preliminary analysis of President Obama's judicial philosophy.

After pointing out that only one of Obama's judicial appointees (Supreme Court Justice Sonia Sotomayor) has fully navigated the confirmation process, Toobin argues that Obama is less of a traditional "liberal" -- in terms of his conception of the proper role of the judiciary -- than certain conservative critics would have one believe:

"Over the years, Obama has expressed admiration for the great liberal Justices of the twentieth century, including William J. Brennan, Jr., and Thurgood Marshall, but he has nearly always distanced himself from their judicial philosophy.

In [an] interview in Detroit last year, Obama described his view of the limits of judicial liberalism. 'The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems.

So the court had to step in and break that logjam,' Obama said, adding, 'I would be troubled if you had that same kind of activism in circumstances today.'"
Later in the piece, Toobin cites to Professor Richard Epstein's take on Obama's philosophy.

If Epstein is correct that Obama is relatively satisfied with the jurisprudential status quo ("Obama has nothing much he wants from the courts (!!!)", some liberals are likely to be disappointed:

"'What you’ll get with Obama is basically Carolene Products — "Leave me alone on economic issues and protect me on civil rights,"' Richard Epstein, the conservative legal scholar who was interim dean of the Chicago Law School when Obama taught there, said.

Carolene Products was a 1938 decision, involving skim milk spiked with non-milk fat, in which the Court set up a structure that would shape constitutional law for the next several generations. The Justices gave the elected branches a more or less free hand on economic issues but exercised greater scrutiny of measures that affected minorities.

'Obama has nothing much he wants from the courts,' Epstein told me. 'He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.'"