The Two Toobins

Jason Mazzone

I have an ongoing interest in how legal issues and particularly Supreme Court cases get reported in mainstream media outlets. Given that few people can easily make sense of bills that Congress generates or of opinions that the Justices write, newspapers, television, magazines, blogs and such perform an important role in keeping the public informed about legal developments. In law school, I was an avid consumer of Linda Greenhouse's careful reporting on the Supreme Court. It is too soon to tell whether Adam Liptak, Greenhouse's successor, will be as successful or reliable as Greenhouse was (his record is so far quite mixed) so the future role of The New York Times (or newspapers in general) in keeping us up to date is uncertain.

Internet sources, of course, offer lots of information today. But there is great variation in quality even among the most popular outlets that present themselves as new mainstream media. For example, while the Supreme Court reporting at Slate is often entertaining, it could not be mistaken for serious journalism.

Some writers appear in multiple settings. In this regard, Jeffrey Toobin, a regular legal commentator, presents an interesting case. On one hand, Toobin is the author of revealing, thoughtful, and well-crafted books on the Supreme Court. On the other hand, Toobin's opinion columns about the Court for The New Yorker are routinely weak, representing advocacy dressed up as analysis and yet succeeding as neither. (I'll leave aside Toobin's appearances on CNN where he is forced to talk with little advance notice about whatever legal issue of the day has emerged: nobody could perform well in that setting and Toobin bluffs his way through admirably.) Derek Muller flags Toobin's strange missteps in describing the Voting Rights Act in a January 14 New Yorker column. Here is a more recent howler from Toobin's column on the 40th anniversary of Roe v. Wade:

Some Justices like to assert, or pretend, that the Constitution has a single meaning, and that each case thus has only one correct resolution. This view is especially pronounced among conservatives, who, in recent years, have claimed that they can identify the original intent of the framers and use their eighteenth-century wisdom to resolve any modern controversy.

Perhaps some dumbing down is needed for readers of The New Yorker but surely it isn't hard to describe originalism accurately. Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning. Moreover, it takes a remarkable obtuseness to conclude that originalists believe eighteenth-century meaning can "resolve any modern controversy." Just the opposite: originalists often say that the Constitution is entirely silent on an issue presented--abortion, say--and resolution of it must therefore be left to the political process. I'm left to wonder, then: how does the author of excellent books end up also authoring poor columns in a national magazine--and what does this tell us about the reliability of old media (books!) versus new?    
        
Posted 9:23 PM by Jason Mazzone [link]