Legal Commentary

A number of law-blogs have picked up on Jeff Toobin's recent New Yorker piece, "After Stevens," a long biographical presentation and also an analysis of the Justice's work, evolution, and legacy.  I was, I admit, put off a bit at the outset by the long-ago-tired "Justices are . . . revealed by their questions . . . Clarence Thomas never says anything" bit.  ("Jeez, not this again.")  Everyone who writes about the Court and the Justices (including me, I'm sure) permits his or her views about the merits of the particular decisions to color how the Court and the Justices are presented.  But Toobin is too smart, I think, to imagine (and he knows too many former clerks and Supreme Court advocates to imagine) that Thomas's lack of interest in "reveal[ing]" (or, in many cases, self-absorbed and distracted) "questions" signals what too many non-lawyers and partisans want to think it means, i.e., that he's somehow not up to the job.  (In my experience, the get-a-laugh or pose-a-wacky-hypo questions that many Justices, and journalists, seem to like "reveal[]", most often, either boredom or a lack of familiarity with the record.) 

In any event, I'd welcome others' assessments of the piece's more general observations, claims, and predictions.  I was struck, in particular, by Toobin's statement that while Justice Stevens is moved more by a "sensibility" than a philosophy, "[h]is jurisprudence is distinguished by his confidence in the ability of judges to resolve difficult issues."  (Though, further down, Stevens' "cautious balancings" are contrasted with Scalia?s "caustic certainties").  This way of proposing what is distinctive about Stevens' approach is intriguing.  Does it work?  What is the difference, in practice, between "confidence in the ability of judges to resolve difficult issues" (which Toobin seems to think is warranted, at least in Stevens' case) and the "judicial activism" that everyone agrees is bad (without agreeing on what it is, I guess)?  Thoughts?