Joel Jacobsen

Jeffrey Toobin has a profile of Chief Justice John Roberts in this week's New Yorker, revealing that George Bush's judge-pickers knew what they were doing when they named Roberts to the court.

In the course of pulling back the curtain to reveal that an upper-crust man who devoted his adult life to Republican causes before receiving the best patronage job in America from a Republican president is, in fact, a Republican, Toobin writes:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

I haven't gotten around to forming an opinion of Roberts yet.  Presumably he's written some criminal law opinions, but I can't think of any offhand. The person whose attitudes are exposed in this passage isn't Roberts but Toobin.

There are two really interesting phrases. The first is: "defer to the existing power relationships in society."

It seems self-evident that the law itself is nothing - literally nothing - but a power relationship. Hobbes said: "when the command is a sufficient reason to move us to the action, then is that command called a LAW." I think that's right.  Whether the law is politically legitimate, whether we have a moral duty to follow or defy it, etc. - those are different and far more involved questions than whether it's law.

When we say that judges "enforce the law," all we really mean is that they make people do things we don't want to do. They make criminals go to jail, ex-ballplayers pay child support, sovereign individuals pay income tax, and so on.  Without the power of coercion, judges would be professors without students, Hyde Park Corner orators, mere bloggers.  The threat of force is the only reason anyone takes judges seriously.

(I've long thought that much of the hostility judges direct toward police officers is the resentment of complete dependence. Without cops, judges are nothing. That's why judges are constantly alert to the least hint of police disobedience.)

Obviously enough, whoever makes the law is powerful, and that includes judges as well as legislators - from which it follows that judges never do anything but enforce power relationships.  That's their job.

The only alternative to a judge "deferring" to existing power relationships is for the judge to impose a new power relationship, and when the judge does that he or she is - unavoidably, by the very nature of imposing - putting him-or herself at the top of the organizational chart. 

So what Toobin meant was that Roberts uses his political power to establish or reinforce one set of power relationships rather than another.  That's all Toobin meant, although I don't think he realized how little he was saying.

From his use of the verb "defer," I gather that he suffers from the widespread fuzzy conception that judges somehow are distinct from "the government" -- a fuzziness that judges themselves propagate with all the avidity of mold spores colonizing old cheese. (See post 133 and post 339.)

That shows up most clearly in the second really interesting phrase in the quoted passage, this one naming specific power relationships in society: "Roberts has sided with the prosecution over the defendant."

Now, I'd like to see a show of hands. When a man kills "his" woman because she wants to break up with him, how many of you agree that the really important power relationship involves the prosecution and the defendant?

I doubt if Toobin believes it, either. I doubt if even occurred to him to think about what he was saying in concrete terms. He just thinks of "criminal law" as synonymous with judicial opinions, and the opinions as expressions of the authoring judge's political views and/or moral purity.  Which, I think, is how many judges see it, too: they're the important players.  You know, the powerful ones.