Supreme Court Justice Anthony Kennedy’s retirement has ignited a competition in Big Media for apocalyptic hot-takes on how a marginally more conservative Supreme Court will destroy America. CNN’s senior legal analyst Jeffrey Toobin seems bent on taking home the trophy for the most molten meltdown.
Toobin’s most recent rave, to the network’s Anderson Cooper, was that the stakes are higher on judicial confirmations today because “[w]hen the Constitution was written in the late eighteenth century, people were expected to die in their 50s. The framers never contemplated that these terms would regularly go to 30-plus years as they do now.”Toobin is as ill-informed about statistics as he is about the framers’ view on de facto life tenure for federal judges.
Toobin, like many people in the media, seems to have little idea about the difference between life expectancy—a figure including infant mortality—and life span. It also appears he may not grasp the difference between the mean and the median in considering what an “average” number is.
About Life Expectancy in the Eighteenth Century
Modern medicine has greatly decreased infant mortality and thereby increased average life expectancy in America and elsewhere. But after infant mortality is accounted for, the human life span has not changed nearly as much over time. During the late 1700s, males who reached age 20 could be expected on average to live to age 63-66. At age 30, they could be expected to live to age 65-68. At age 50—when Toobin thinks men were being wiped out—they could be expected to live to age 71-73.
Moreover, infant mortality will affect both the mean—which is what most people think of as an average—and the median, the number at which half the population will be above and half below. The median still provides the opportunity for half the population to live well beyond the average.
Of course, the framers were no more expert on these subjects than Toobin is. But James Madison lived to age 85. Ben Franklin lived to age 84. Paul Revere made it to age 83, while John Adams lived until age 90. Thomas Jefferson, while technically not a framer of the Constitution, lived to 83. The first Supreme Court chief justice, John Jay, lived to 83. They likely noticed that their contemporaries were not all keeling over in their 50s.
Granted, Alexander Hamilton died at age 47 or 49, depending on which records you believe. But he died in a duel with Aaron Burr. Surely, Toobin has seen the musical. Ironically, Hamilton’s views on the tenure for federal judges are well-known and have nothing to do with life expectancy or life span.
Life Expectancy Had Nothing to Do With Appointments
Hamilton is generally considered the author of Federalist No. 78, which was devoted in part to rebutting the objections some Americans had to the requirement in Article III of the Constitution that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Hamilton argued:
The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
Hamilton saw the danger of judges acting like lawmakers, even if he underestimated it:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
And he was nevertheless correct to argue:
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
Hamilton’s basic point, that the independence a permanent tenure affords would make judges less susceptible to popular pressures to expand governmental power, was generally sound, even if this bulwark has eroded to the point where the Jeffrey Toobins of the world expect justices to act as Platonic guardians of our society. In any event, when Hamilton argued that the judiciary would be the “least dangerous branch” of the proposed government, he did not make the claim based on actuarial tables.
This Level of ‘Analysis’ Is Typical for Jeffrey Toobin
Toobin’s ahistorical analysis is merely the latest in a series of rants, the most notable of which originated on Twitter and a column in The New Yorker:
See the new @USSupremeCourt clearly: Abortion illegal; doctors prosecuted; gay people barred from restaurants, hotels, stores; African-Americans out of elite schools; gun control banned in 50 states; the end of regulatory state. My @NewYorker column.https://t.co/ik0fa4XDIK
— Jeffrey Toobin (@JeffreyToobin) July 1, 2018
Toobin, in whom CNN seems to have entirely misplaced its trust, is untethered from reality on virtually all of his particulars. His diatribes sound much less like legal analysis than the angry sputtering of someone whose sexual morals are being questioned.
Toobin has become an object of mockery, not only from Fox News, but also from colleagues like Jon Avlon and David Gregory, and even HBO’s John Oliver. It may be time for Jeff Zucker, or anyone else in authority at CNN, to stage an intervention if they hope to salvage the reputations of Toobin and the network.