The Potato Chip Defense Of Liberal Jurisprudence

by Pejman Yousefzadeh on June 4, 2009


I wrote recently, in the context of the current Supreme Court appointment: “Supreme Court nominations seem to create something of a madhouse atmosphere in journalistic circles. The coverage of political battles is incomplete and replete with error. The coverage of judicial personalities is tinged with a general inability to grapple with the jurisprudence of the personalities in question. It’s not easy to go through a Supreme Court nomination process with anything approaching public dignity and decorum; the degree to which journalists fall down on the job in covering the nomination process makes achieving dignity and decorum that much harder.”

It gives me no joy whatsoever to write that my cynical attitude towards press coverage of jurisprudential issues in general, and the current judicial confirmation wars concerning Justice David Souter’s replacement in particular, has been reinforced by Adam Cohen’s latest editorial on jurisprudential philosophy. Cohen means his editorial to serve as an attack on conservative judges. But in preparing it, he has substituted stereotyping for serious thought.

In his editorial, Cohen recounts a case that was brought before Britain’s Supreme Court of Judicature, in which Procter & Gamble, putting forth what Cohen calls “a plea for strict construction,” argued that its Pringles brand potato chips were not, in fact, potato chips. Procter & Gamble’s reasoning is that while Pringles do contain 40 percent potato flour, they also contain “corn, rice and wheat,” thus making them “savory snacks,” and not potato chips. Procter & Gamble had an interest in preventing Pringles from being classified as potato chips; a potato chip designation would expose Pringles to a value-added tax (VAT) in Britain.

Initially, the VAT and Duties Tribunal found that Pringles do indeed qualify as potato chips, an appeals court reversed, and finally, the Supreme Court of Judicature reversed the appeals court ruling, to find that Pringles “are sufficiently similar” to potato chips to be classified as such, and that the court would not require Pringles to be all potato in order to have it classified as a potato chip.

From this finding–which non-lawyers (and perhaps some very lawyerly lawyers) would find tedious–Cohen bounds to the following argument:

Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like [Sonia] Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” — or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”

In the end, as Lord Justice Jacob noted, a judge can only look at the relevant factors and draw an overall impression. His common-sense approach was a rebuke not only to Procter & Gamble, but to everyone out there who insists that the only way to read laws correctly is to read them strictly.

Where to begin?

Well, perhaps, we could begin by pointing out that if jumping to conclusions were an Olympic sport, Cohen would win enough gold medals to make Michael Phelps envious. To go from recounting the details of the Procter & Gamble case to arguing that conservative jurisprudence is somehow “rebuked” takes quite the liberty with logic and rigor.

But more on that later. For now, it suffices to express surprise that Cohen actually is shocked–shocked!–to find that there is lawyering going on in courts. While non-lawyers, and perhaps some very lawyerly lawyers, might find the telling of this case tedious and mind-numbing, those who are familiar with litigating know that this kind of argument–whether one finds it tedious or not–happens all the time in the practice of law. Indeed, lawyers are paid gobs of money to carry out litigation such as the kind that was carried out on behalf of Procter & Gamble. That is the job of a lawyer. Corporate clients want to be able to cut costs anyway that is legal and ethical, because if they are able to do so, they will be able to sell their goods and services to customers at a lower cost, instead of passing on higher prices to those customers. They ask their lawyers to craft arguments to enable them to do so.

In this case, Procter & Gamble wanted to avoid a VAT so that it could charge customers less for Pringles, thus enabling them to buy more of the product. They asked their lawyers to prepare and defend a case that would allow Pringles to avoid being slapped with a VAT. Cohen makes no contention whatsoever that Procter & Gamble’s lawyers put forth anything less than a good faith argument on behalf of their client; indeed, if there were any hint of bad faith on the part of Procter & Gamble’s lawyers, Cohen–caught in the throes of derision for Procter & Gamble’s argument–would have gleefully noted it. The arguments put forth by Procter & Gamble were enough to sway the appeals court to overturn the initial VAT and Duties Tribunal decision, and while Cohen calls the appeals court’s ruling “convoluted,” he does not afford us the opportunity to read the opinion for ourselves, to make up our own minds as to whether the ruling makes sense. There is a great deal in Cohen’s article to suggest that he does not do Procter & Gamble’s argument justice, and that however much he may disagree with it, Procter & Gamble’s case does not deserve the scorn that Cohen reserves for it.

But even putting the specifics of this case aside, Cohen’s editorial fails because he chooses to attack a strawman in critiquing conservative jurisprudence. Cohen focuses his attack on “strict constructionism,” but he doesn’t seem to understand that the dominant school of conservative jurisprudence is originalism. The two schools of thought are quite different; something that Cohen would have known if he had bothered to check Wikipedia to find out (one presumes that checking Wikipedia for a clue suggesting that strict constructionism is different from originalism would not be too much to ask; it is not as if Cohen is being ordered to peruse law review articles, after all). Using “strict constructionism” as a catch-all term for “conservative jurisprudence,” therefore, simply will not do. Had Cohen perused the Wikipedia entries at issue, he would have known that no less a conservative jurist than Justice Scalia has stated that “the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably,” and that additionally, Justice Scalia has said that he is “not a strict constructionist and no one ought to be,” since strict constructionism is “a degraded form of textualism that brings the whole philosophy into disrepute.” Neither Justice Scalia, nor Justice Thomas, nor Justice Alito, nor the Chief Justice are strict constructionists, in fact, which makes one wonder why Cohen chose the term “strict constructionism” and “strict constructionists” to describe conservative jurisprudence and its adherents. To be sure, there are plenty of conservatives who have been similarly sloppy with the use of this terminology, but that does nothing to excuse Cohen’s sloppiness.

As such, using the Procter & Gamble case to attack “strict constructionism,” and through it, conservative adjudication, makes no sense, since conservative adjudication is better exemplified through originalism than it is through strict constructionism. Cohen either doesn’t understand the intricacies and subtleties of the dominant originalist school of conservative jurisprudence, or he doesn’t care about the facts, and simply wanted to attack a convenient caricature of conservative adjudication. In either event, his attack is a fraud. The law has witnessed use of the “Twinkie defense“; behold now what might be termed Adam Cohen’s potato chip defense of liberal jurisprudence. I hate to say “I told you so,” when it comes to media coverage of Supreme Court nominations, jurisprudential issues and philosophies, and the personalities associated with the practice and adjudication of law. But I did.

Read more and comment at Pejman Yousefzadeh’s blog.

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