September 20, 2007

A "(nearly) silent steward of judicial tradition" or "a robed crusader for the rule of law."

What's the difference, really, when we are talking about Supreme Court Justices? In his book "The Nine: Inside the Secret World of the Supreme Court," Jeffrey Toobin uses those words to depict a sharp contrast between Justice Souter and Justice Kennedy, respectively. (Page 52.) But we are talking about people who mainly write judicial opinions, and both men write lengthy opinons that purport to interpret the law.

Toobin portrays Kennedy as a publicity hog -- he "relished his public role and sought out the opinions that would make the newspaper." Moreover, unlike Souter, who always used a fountain pen, he typed "furiously" at his computer. (We're not told the speed at which Souter moves the fountain pen, which makes me think it's probably pretty fast.)

Kennedy "always labored most closely on the sections of opinions that might be quoted in the New York Times." Says who? Of course, we can easily think up a sentence that looks labored over and naturally got quoted by Linda Greenhouse, but does that mean he writes what he writes out of inappropriate personal vanity?

We're told Kennedy "liked to talk... of great 'teaching cases,' that is, opinions that instructed law students on timeless principles." Now, wait a minute. I've used the expression "great teaching case" for years and heard it used even longer, and I don't think it means cases that "instruct students on timeless principles." A great teaching case is a case that has various elements that, taken together, make it work well in the classroom. It's a law professor concept, and -- as Toobin notes on the same page -- Kennedy kept up teaching law school in his summers, both as a Court of Appeals judge and as a Supreme Court Justice. So I assume he's talking about the same thing I understand.

A great teaching case will generally have crisp, exciting facts that engage the students, good arguments on both sides based on text or case law or policy that stimulate classroom debate, a memorable resolution of a significant issue, maybe a vivid dissenting opinion, and lots of room to speculate about the political dynamics underlying the case, the real world impact, and the way the new doctrine will play out in different fact patterns. It doesn't mean the judge dictated some high-level abstractions.

Souter, good. Kennedy, bad.

45 comments:

hdhouse said...

Ann, it may be a lot less trouble to just say you didn't like the book and it was pretty much pablum although I enjoyed your comment on what makes for a great teaching case.

Joshua said...

What's a crisp fact?

Ann Althouse said...

hdhouse: I'm in the middle of reading it, and I'm going to blog about it as I run into things I want to write about. I don't have an overall opinion on whether I like the book or not.

blake said...

It's one that was sealed in a ZipLoc bag immediately after opening.

Or maybe a fact that is undisputed. Those make good teaching examples, I would think. If you have to spend time establishing the reality of what happened, then you have less time to devote to how the law should apply to that reality.

Ann Althouse said...

Some cases have muddled facts, and it can take up a lot of time getting things straight, with little point to it. You want interesting facts, but the should present the legal issue well. Sometimes there are weird little qualifications and anomalies that you don't like having to deal with.

Simon said...

Harry - It says a lot about the tone of the book that it can make the reasonable reader suspicious even when it's describing what's basically the conventional wisdom about Kennedy. When it's not nakedly partisan, it's passing off stuff that I had thought was common knowledge as if it were devastating insight into the "secret world of the supreme court" as the subtitle has it.

This isn't to say it's badly-written, or that it's not worth reading - I mean, it's not Martin Garbus or Marc Levin or somesuch - just be aware that it's not to be taken too seriously, and is best treated as an interesting companion piece to more reliable works. It is, simply put, far more Closed Chambers than The Brethren.

Ann Althouse said...

It may help to say that when I say "facts," I'm referring to the part of the written opinion that states what happened to the parties. I want these crisply stated. Is the notion of "clear facts" any clearer than "crisp facts"? I'd like the facts to be crunchy too. And tasty!

Simon said...

Ann (9:45 comment) - so you're not going to be teaching Rockwell Int'l Corp. v. United States (the "pondcrete" case) any time soon? ;)

Ralph said...

What judicial tradition is Souter stewing? The emanating (Earl) Warren?

Simon said...

Ralph - the second Justice Harlan, according to Toobin.

Simon said...

Ann, would you rank Monroe v. Pape as a prototypical "great teaching case"?

hdhouse said...

I guess I get all crazy with the use of the noun "fact". Then I get drawn into "question of fact" and onward. I'm not sure though what a "clear fact" is or a "crisp fact"...are these not better expressed as "fact clearly stated" or "fact in crisp prose"...

But this goes to a lot of what is being written here...is this book based on "fact" or offering up a version of observation...splitting hairs perhaps not. I'm not particularly impressed with observations about "what seems to have happened or occured" when, in fact, there is a deed done and that shouldn't be open to speculation and interpretation...the effect of the done deed certainly is debatable but the deed itself shouldn't be.

jeff_d said...

Souter as steward of the judicial tradition of the second Justice Harlan?!? That is delusional.

If nothing else, joining the majority in Dickerson should be disqualifying. Consider this, from Justice Harlan's Miranda dissent, contrasting the court's approach with a more patient reliance on the legislative branch:

" . . . legislative reforms, when they come, would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs."

So, in Dickerson, along comes a legislative reform with the advantage of twenty-some years of empirical data, and it is shot down in favor of turning Miranda's prophylactic rule into an unwritten constitutional amendment.

Ugh. Sorry to veer so far off topic.

Trooper York said...

Say yeah, yeah, yeah, yeah, yeah, yeah
Sing it for me fellows, now
Say yeah, yeah, yeah, yeah, yeah, yeah.

I try to put my arms around you
All because I wanna hold you tight
But everytime I reach for you, baby, try to kiss you
You just jump clean out of sight.

And oh I've got news for you
Baby, now I'll make place for two
I guess you're just a stubborn kind of fellow
Got my mind made up to love you.

Everybody say it
Say yeah, yeah, yeah, say yeah, yeah, yeah
One more time
Say yeah, yeah, yeah, yeah, yeah, yeah.

I'm gonna love you in every way
(Gonna love you, gonna love you, in every way)
I say I'm gonna love, girl, you in every way
(Gonna love you, gonna love you, in every way)

Now, other girls are falling
And I'm waiting for the moment
But I need you to stay by my side
I know you've heard about me
Bad things about me
Baby, please let me explain
I have kissed a few (baby, baby)
Many a few have kissed me too
I guess I'm just a stubborn kind of fellow
Got my mind made up to love you
(Love you, love you)

Everybody say
Say yeah, yeah, yeah, say yeah, yeah, yeah
Oh, yeah, sing it everybody now
Say yeah, yeah, yeah, say yeah, yeah, yeah.

(The Surpremes)

Ralph said...

I thought Ann was overreacting to "the jig is up," in yesterday's OJ post's comments, until I saw this on Ace's post about Jesse, Obama, and Jena:
Acting white means acting thoughtfully.
Posted by: ricpic at September 20, 2007 06:09 AM
"Acting white" is what Jesse allegedly said of Obama, but ric's rapidly losing the presumption of innocence, even if Obama was acting thoughtfully on Jena.
Wiki says "jiggy" may derive from "jigaboo", which I'd only heard in the racial epithet song from the musical Hair.

hdhouse said...

Ralph....wiki is dead wrong. Jig is British slang for fraud or deceit. See Jiggery-Pokery...earliest is 17th Scottish Juwkry-pawkey and later jookery-pawkery...root is "jouk" to duck, dance, or dodge about.

Jig also refers to a popular dance step appearing in the early 17th century throughout europe (jig, gigue, giga, etc.)..and closely parallels "jouk" in its early renditions, particularly non-courtly applications..

To cast it in light of jigaboo is quite outside the flow of its usage. There ya' go.

Ralph said...

Wiki was talking about Will Smith's "jiggy", and it does say the derivation isn't clear.
It isn't totally unreasonable, when you consider all the other anti-black epithets in rap.

rhhardin said...

How do you crusade for the rule of law?

The basis of the rule of law is not the rule of law, as it admits.

EnigmatiCore said...

Ralph,

"jiggy" might have derived from some malicious slang, but jiggy does not equal jig. They are different.

Without getting into the whole ricpic thing (which I had not seen until I just went looking for it), hdhouse is right.

CBC did a whole bit on the origins of "the jig is up" and it was used long before the slang term from which some think it is derived.

That said, apparently some think the phrase is racist in nature (as did/does Ann). I would imagine that in that group that has that belief about that phrase, there are some who are offended by it accordingly (such as Ann) and others who would use it precisely for that reason.

Anyhow, I will continue to use that phrase occasionally because I have used it throughout my life, and have never found its use associated with any racial implications at all. I'll file it in the same mental folder as 'niggardly'. Sorry, just because some people have made bad assumptions about a word or phrase doesn't mean it should be banished.

But, ralph, the more important thing is not how some anonymous commenter meant that line. The more important thing is not OJ. The more important thing is that story about Jena. For once, Sharpton and Jackson have a right to be screaming from the rooftops. Based on what I have read, what is going on down there is a shameful blight on our country.

How on earth can there be a "white tree" in the modern US? How on earth can we tolerate nooses being hung from trees because someone with different skin pigmentation sat under the damn thing?

What the hell is wrong with these people?

Joe said...

"a robed crusader for the rule of law" sounds an alternate version of the man with no name from "High Plains Drifter". This one is dressed in black robe and using a gavel instead of a gun. (When getting shaved, he doesn't shoot the other guy, he bonks him.)

(This actually sounds very Monty Pythonesque.)

Paul Brinkley said...

I'm more reminded of "caped crusader for the rule of law".

Look! Up on the bench! It's a bird! It's a plane! It's SOUTERMAN!!!!

(Well, okay, Toobin says Souter is the traditionalist, but "Captain Kennedy" just doesn't fit with the quote.)

Cedarford said...

Another way of seeing Toobin's perspective:

Souter good, he votes in lockstep with Ginsberg and Breyer on advancing transnationalist law.
Kennedy bad, he doesn't.

Simon said...
This comment has been removed by the author.
Simon said...

Paul - love the image. I wrote last year, in a paper on foreign, law that "[t]ransnationalists see the Federal judiciary as an army of Batmans – moody caped (or rather, robed) crusaders fighting injustice, and believe that transnational comparative analysis would make a nifty tool for the judicial utility belt...."

Cedarford said...

enigmaticore - How on earth can there be a "white tree" in the modern US? How on earth can we tolerate nooses being hung from trees because someone with different skin pigmentation sat under the damn thing?

The "Jena 6" thing merits it's own thread if Althouse thinks it's worthy.
I would be curious if whites called it the "white tree" or blacks just claim it is so and themselves named it "the white tree". I wouldn't be surprised if it turns out blacks put the nooses in the tree to gain the high ground of "victimhood" and also to justify their going around beating up students of other races at random.

There is an unfortunate track record where over half the time, blacks are found to be the actual culprits when some sensational racial slur graffitti like "niggers suck" is found in schools, nooses hanging about, KKK
"threats" on telephone are claimed.

The blacks at Jena mounted a series of attacks and gang beatings on whites - regrettably a common phenomenon in America for public school interactions with blacks vs. Asian, hispanic, and white students. Few non-black graduates of public school with a large black contingent can say they or their friends never suffered blacks launching a beating or robbery on them.

The early assaults followed the national model of little consequence to the assaulters at Jena. But when it escalated to a gang of blacks finding a white student well-separated from his peers and beating him unconscious, stomping him, sending him to the hospital
- that changed.
Law enforcement vs. liberal school administrator/teacher enablers took over, and they threw the book at the black assailants.

Now the template calls for black activists to come in, denounce white racism, demand the beaters be released from charges, and the town to "apologize" for any manifestation (racist graffitti, nooses in trees, menacing KKK calls) that proves blacks are still being victimized and the good old race baiters are right that it is still 1963 in Selma.

That black students who launched several racial attacks are in fact the true victims...And should suffer no consequences for their justified "acting out their victimhood".

After the town and school grovels to liberal outrage, odds are we find some black student put the nooses in the tree....and then we are told that doesn't matter because it helped expose the "subtle underlying racism" that led to "acts intended to raise social consciousness". And, of course, to justify hitting non-blacks.

Ralph said...

I agree "the jig is up" isn't inherently racist. My Funk & Wagnalls says "jigger" is slang for to put in jail: "I'll be jiggered". However, throwing it out by itself about Simpson may be a little too cute.

The Jena business sounds like many towns when the schools first integrated 30 odd years ago. The DA overreacted after the school underreacted. However, poor black people have several problems more important than racist white trash. I'd like to see them march for more effective schools and safer neighborhoods.

Peter Palladas said...

I'm with the fountain pen everytime.

As per Martin Amis, the flashing computer cursor just makes you think you're thinking.

Mortimer Brezny said...

I wouldn't be surprised if it turns out blacks put the nooses in the tree to gain the high ground of "victimhood" and also to justify their going around beating up students of other races at random.

I wouldn't be surprised if Cedarford doesn't have a black wife.

Revenant said...

How on earth can we tolerate nooses being hung from trees because someone with different skin pigmentation sat under the damn thing?

We don't. Everybody condemned it.

If you're asking "how can we not throw the people who did it in prison", though, the answer is "because we have a First Amendment".

Trooper York said...

I think he is a robed crusader:

There's no need to fear, Underdog is here.

When criminals in this world appear,
And break the laws that they should fear,
And frighten all who see or hear,
The cry goes up both far and near for
Underdog,
Underdog,
Underdog,
Underdog.

Speed of lightning, roar of thunder,
Fighting all who rob or plunder
Underdog, Underdog.

When in this world the headlines read
Of those who's hearts are filled with greed
And rob and steal from those in need.
To right this wrong with blinding speed goes
Underdog,
Underdog,
Underdog,
Underdog.

Speed of lightning, roar of thunder,
Fighting all who rob or plunder
Underdog, Underdog

(or maybe not)

Maxine Weiss said...

http://www.youtube.com/watch?v=CWlJrWX6fio

Maxine Weiss said...

"You want it more than I do"

steve simels said...

Cedarford said...
I wouldn't be surprised if it turns out blacks put the nooses in the tree to gain the high ground of "victimhood" and also to justify their going around beating up students of other races at random.


Nice to see we've moved beyond the standard coded nudge-nudge wink-wink racism that's so popular here and gone straight to the unapologetic real thing.

The only surprise is that it took so long....

Maxine Weiss said...

"Do you know who I am?"

Palladian said...

When Simels shows up it's like a regurgitative belch two hours after eating a triple helping of huevos rancheros. A bad taste in the mouth, a burning pain in the esophagus, a blast of foul, vomitous air... You know, at that moment, that brunch is truly over.

steve simels said...

Palladian said...
When Simels shows up it's like a regurgitative belch two hours after eating a triple helping of huevos rancheros. A bad taste in the mouth, a burning pain in the esophagus, a blast of foul, vomitous air... You know, at that moment, that brunch is truly over.

Yet another reason Pal's posts are frequently mistaken for after dinner witticisms by Noel Coward.

Palladian said...

Noel Coward would hate you too.

steve simels said...

Palladian said...
Noel Coward would hate you too.


Why? Was he a self-hating Tory in bed with the Official Party of Homophobia?

Wow....you must be so proud of yourself....

EnigmatiCore said...

Cedarford,

That you would jump to such conclusions surprises me not one iota.

EnigmatiCore said...

"though, the answer is "because we have a First Amendment"."

You might want to think about if the First Amendment covers making threats.

Are you seriously arguing that people should be able to hang nooses from school property with the intention to intimidate black people and have this covered by the first amendment?

Ann Althouse said...

Are we still talking about Souter and Kennedy?

Palladian said...

I was never talking about Souter and Kennedy!

Simon said...

What is the most famous line in an opinion by Justice Souter?

Trooper York said...

The most famous line in a opinion by Scooter:
"Well that (Pope Paul VI passing away) kind of puts the damper on even a Yankee win"

dave in boca said...

Watching Toobin bloviating & expatiating on CNN is a trip to the dentist without novocaine. He's one of those self-congratulating narcissists that populate MOR commentary, with the usual liberal tropes thrown in to please his liberal employer.

Where is Stu Taylor now when we need him? He is ten times the thinker Toobin purports to be. And doesn't play emo games like most legal commenters.

Actually, my favorite commenter is Julia Banderas, for reasons having little to do with legal commentary!