‘Uncertain Justice’

‘Uncertain Justice’

Joshua Matz looks at the Supreme Court, the Constitution, and preconceptions

Joshua Matz, left, joins co-author Laurence Tribe at a book signing for “Uncertain Justice.”

As we have seen once again in the last few weeks, as its session drew to its usual dramatic end, Supreme Court decisions tend to be 5 to 4.

The winning side triumphs ““often, it actively gloats – and the losing side slinks off to mutter darkly about idiocy and misreading and blatant politicization.

That is an entirely reasonable thing for those of us who are not Supreme Court justices – and that is everyone except nine of us, and none of those nine people read this newspaper – to feel, but it is neither accurate nor particularly helpful to do so, Joshua Matz says.

Mr. Matz, who grew up in Suffern, is the co-author of “Uncertain Justice: The Roberts Court and the Constitution.” Working with Laurence Tribe, the lawyer and Harvard Law School professor whose name was mentioned for decades as a likely Supreme Court nominee, Mr. Matz contends that in fact the justices are more different from each other than their glibly applied labels might imply, and that their own histories, beliefs, and casts of mind mean that the decisions they make are fueled by something more powerful, more interesting, and more worthy of attention than the certainties of 5 to 4 might suggest. (Or, as Oscar Wilde put it, “The truth is rarely pure, and never simple.”)

Even before we get to the stories about the Supreme Court, there is a story about how Mr. Matz came to write about it.

Mr. Matz, 29, went through high school certain that his future lay in the sciences. NYU has a genetics lab in Rockland County; Mr. Matz worked there as a teen. “I would go to college and become a biologist,” he remembers thinking. “It was all set.” He went off to the University of Pennsylvania, “and almost by accident, I took a course called ‘Ancient Greek and Roman Magic.’

“The syllabus was right out of Harry Potter,” he said. “I really got into it. I was most interested in the sheer foreignness of it – to learn about that world you had to understand about spell battles, and about wearing amulets.”

That immersion in a world whose rules had to be learned from the very beginning, whose very syntax was unfamiliar, “led me indirectly to intellectual history,” he said. There were intermediate steps – he graduated from Penn with a triple major, in biology, philosophy, and history. His next stop was Oxford University, where he earned a master’s degree in intellectual history. His interest was piqued by the way in which the study of history itself did not begin to take the form it has today until late in the 19th century. Until then, he said, it was philosophy or theology – narrative shaped by the moral or theological vision it was meant to convey.

As he fell in love with history, Mr. Matz also felt most drawn to the period right after the American Civil War. “There was so much in flux then,” he said. “Race, gender, control over cultural life, the influx of immigrants with new ideas.”

As his thinking about his own life evolved, Mr. Matz decided to become a historian; his interest lay in the intersection between legal and intellectual history. “I went to Oxford thinking that I would get a J.D. in legal history, and then do history,” he said. (Despite its grand name, a Juris Doctor degree means that if you pass the bar you can become a lawyer. It’s the first degree a law school gives its graduates.) He thought that the J.D. would be useful because it would allow him to understand the legal documents that historians so often must read but so rarely fully grasp.

“When I was in Oxford, though, I discovered that I did not love being a graduate student in history,” Mr. Matz said. “It’s lonely. You spent all day in the library, alone, with dead people’s writing. And then I got lucky. I got into a bunch of good law schools, and I decided that I should check them out.”

One of those law schools was Harvard. “When I was there, I got lost. I had no idea where I was,” he said. “And then I saw this very kind old man, a sweet old man, walk by in the hallway. He said, ‘You seem totally lost,’ and I said, ‘I am.’

“At that point, I was lost on so many levels.

“So he asked me what I was doing there, and I told him, and he invited me back to his office. I didn’t see the name on the door. So we started talking, and I mentioned that I had just given a presentation to the Oxford history faculty on the history of gay rights in America. I started talking about it, and he said, ‘Oh yes, yes, I know that case. I actually argued that one in the Supreme Court.’

“And I looked up, and I said, ‘You’re Laurence Tribe!’ And he said, ‘You should come to Harvard.'”

Mr. Matz did go to Harvard Law School, and although Mr. Tribe spent the first half of Mr. Matz’s three law school years in Washington, working for the Obama administration, when he returned, Mr. Matz became his research assistant, and then his teaching assistant.

The two men taught a freshman class on the history of the Constitution together; because he had never taught it before and did not have a syllabus for it, Mr. Tribe asked Mr. Matz to work with him to write one.

That course was the seed from which the pair’s new book grew.

The freshmen “were really smart, and they didn’t come in laden with preconceptions,” Mr. Matz said. “That was great. There are so many more stories you can tell when you do not have to address a lot of preconceptions – people saying I know that everything is always 5 to 4, and I already know what the Constitution says.

“When you have to explain something to a new audience, you have to go back to first principles, and think about how you really want to tell this story. When we finished, we asked ourselves why only these freshman should have the opportunity to hear it as we told it to them.”

So, what are the misconceptions?

“The first and most glaring is that there are four conservative and four liberal justices and one swing voter, and the Constitution means whatever the swing voter happens to think,” Mr. Matz said. “There are many unanimous opinions, and the four right-leaning justices in particular disagree with each other a lot. They are conservative in different ways. Often, Justices Scalia and Thomas want to go a lot further in changing the constitutional law than do Justices Roberts and Alito and Kennedy.”

That liberal/conservative breakdown “isn’t that useful in figuring out when the justices will not vote to type,” Mr. Matz continued.

“And then, there is the ultimate and much more deep sense in which it turns out that the Constitution doesn’t always mean what those nine people in their marble palace think it means. Sometimes, it means what legislators think it means, what voters think it means, what other people think it means, what you and I think it means.

“It is neat and simple to tell that 5 to 4 story. It matches up with partisan needs. And I share that impulse – I also think that I’m right, if you agree with me you’re right, and if you disagree with me you’re wrong; and you people who are wrong, you can all just go fall into the pit. And it’s not wrong to feel that way – but if you really care about what’s happening, it’s not useful.

“I have a romantic idea that it is not good for American democracy when you have groups of people who each can sit in their own echo chambers, in their own bunkers, with their own allies, saying that anyone who disagrees with me is a fool or a knave, you’re with me or against me, and if you’re wrong, you’re also an idiot.

“I do think that there is a way to talk about issues that gets beyond that kind of thinking.

“The questions the court faces are legitimately hard.

“The book is aimed at giving people the resources to really understand what is going on,” he continued. In other words, Supreme Court justices are real people, the Constitution is ambiguous, and the justices’ decisions are based on their own human understanding of the law, shaped by their life experiences and the way their own filters light the document that guides them.

There is something else that guides Mr. Matz. “I got into this in the first place because of something that might sound corny but is true,” he said. “I went to school at Gittelman” – that’s the Reuben Gittelman Hebrew Day School in Suffern, which was affiliated with the Conservative movement’s Solomon Schechter schools and closed in 2012. “They taught us that Jewish ethics are fundamentally about tikkun olam. The Jewish people have been oppressed, they taught us, and we should be alert to new forms of oppression. We should have a personal moral responsibility to prevent evil from happening when we see it happening.

“The ethics that I learned from Gittelman played a fundamental role in my getting into law in the first place. It’s why I worked on civil rights issues when I was an undergraduate, and a big part of what causes me to care in such a deep way about what the Constitution means. It is not an academic question, because it can fundamentally define our relationship to each other – who has power over who, and what protection we give to the vulnerable.

“My Jewish education is a large part of how I came to care about these issues,” Mr. Matz said.

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