The Supreme Court, Common Sense and Super-Nerds

It was Bill Buckley (my mentor in matters political) who praised the good sense of common people by writing that he would rather "live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University." (Rumbles Left and Right)

But common sense has taken a beating this week.

The usually thoughtful Jed Babbin, filling in this week for Hugh Hewitt, responded with a surprising lack of common sense to a caller. The caller pointed out that Republican senators had voted to confirm Justice Ginsburg despite disagreeing with her personal views and knowing she was not a strict constructionist.

They voted for her because they believed that Article II of the Constitution gave President Clinton the right to nominate justices who shared his judicial and political views. The caller’s question was: Shouldn’t Republicans give a Republican president at least as much leeway in approving his nominee as they gave a Democratic president? Babbin responded that at least we knew where Ginsburg stood. We don’t know where Miers stands. Huh? Better to vote for a candidate you know is opposed to your judicial philosophy than to vote for a candidate who may be for it?

Common sense took another hit when Ann Coulter decried it as not being a fit attribute for Supreme Court justices. From her October 19 column:

Common sense is the last thing you want in a judge! The maxim "Hard cases make bad law" could be expanded to "Hard cases being decided by judges with 'common sense' make unfathomably bad law."

It was "common sense" to allow married couples to buy contraception in Connecticut. That was a decision any randomly selected group of nine good bowlers might well have concurred with on the grounds that, "Well, it's just common sense, isn't it?"

But when the Supreme Court used common sense — rather than the text of the Constitution — to strike down Connecticut's law banning contraception, it opened the door to the Supreme Court rewriting all manner of state laws. By creating a nonspecific "right to privacy," Griswold v. Connecticut led like night into day to the famed "constitutional right" to stick a fork in a baby's head.

Leaving aside the fact that Griswold did not appeal to common sense as a basis, let alone the primary basis, for a right to privacy, Coulter used a not so logical sleight of hand to link common sense and “stick[ing] a fork in a baby’s head”.

Her argument was that the Supreme Court used common sense to find a right to privacy. The Court later used the right to privacy as the basis for upholding partial-birth abortions. Therefore, common sense is to be blamed for recognition of a right to partial-birth abortion.

One could restate the logical fallacy in simplistic terms: Dogs are animals. Animals include ducks. Therefore, dogs are ducks.

Dogs aren’t ducks, and partial-birth abortion is not common sense. Rather, it is exactly the legal “super-nerd” Coulter admires who might find a nexus between a right to privacy and partial-birth abortion. It would not be the result of the average American’s common sense judgment.

One of the finest moments in John Roberts' Senate confirmation hearings was about as common sense as it gets. Roberts said:

If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution.

That’s a position the first 2,000 people from any city's telephone book could understand. It’s not the legal super-nerd who came out shining in the Roberts hearings, but a Chief Justice who has a rock solid common sense understanding of how to decide cases that come before him.