I'm a fan of Jeff Rosen's work on privacy (and even interviewed him about a year back) but dear sweet Jeebus is this New Republic piece about John Roberts from last week infuriating in about a dozen different ways—some minor, some major. Here are a few:
- There's the requisite reference to "what some libertarian activists call the Constitution in Exile," which as Orin Kerr has argued pretty persuasively seems to be a term that appeared only in one book review by Judge Douglas Ginsburg and maybe in a few Ginsburg lectures since. Until Rosen and Cass Sunstein started pushing it as a rallying cry for the Great Libertarian Jurisprudential Conspiracy. Of course, there really are lots of conservative and libertarian legal thinkers who believe modern constitutional interpretation has gone off the rails, but none of the ones I know use the phrase, and it seems designed to obscure the differences between these thinkers by suggesting a more uniform program: the resurrection of the "exiled" Constitution.
- There's this not-very-useful schema of "top down" vs. "bottom up" judges that makes it sound as though the main difference in jurisprudential approach is that the moderate judges Rosen approves care about paying attention to the facts of a case, while the originalist "extremists" he dislikes are just on some sort of autopilot. As he acknowledges later, of course, the real difference is that his moderates are more likely to give relatively greater weight to precedent and stare decisis, while originalists are more prepared discard it when it conflicts with their understanding of the text of the Constitution. To the extent that the former approach yields a larger number of fine distinctions to make, this produces the kind of "bottom up" attention to detail Rosen is talking about, but as a kind of epiphenomenon. Both sorts of judges, of course, are applying their own set of legal principles to sets of facts, and both will need to closely scrutinize fact patterns in their respective boundary cases; the moderates just have more of those boundary cases. Rosen's schema distorts what's actually going on.
- Rosen uses the word "rigid" or "rigidly" four times in his opening paragraphs to characterize "top-down" judges. Except, here's the thing: The whole value of stare decisis, which Rosen wants to defend stronger adherence to, is precisely that it stabilizes expectations by fleshing out how the law will apply with greater precision than the broad terms of the Constitution alone do. Part of that value, obviously, comes from the greater nuance you can get out of a pile of decisions than from a short document, but it depends on those precedents being applied, yes, rigidly. Indeed, to the extent that being bound by past specific applications of constitutional provisions attenuates the leeway or ambiguity inherent in broad terms like "unreasonable search" or "cruel" or "establishment" or "equal protection," a good precedent-bound judge is going to find herself making much more "rigid" and mechanistic rulings than one who's trying to suss out how the 18th or 19th century understandings of those terms apply to contemporary cases.