Liberal Scholars Should Take a Deep Breath
By Eric Segall
Regular readers of this blog might know that I frequently cite the work of Professor Mark Tushnet of Harvard Law School to support my legal realist views of the Supreme Court. Mark’s iconic statement that “law is politics all the way down” neatly explains why law is not a special or unique discipline, while his book “Taking The Constitution Away from the Courts” persuasively describes the benefits of dramatically limiting the role of judicial review in our political system. For over three decades, Mark has been a leading progressive voice in the legal academy. Additionally, early in my career, Mark was a valuable mentor to me, providing sage advice and constructive criticism on numerous projects.
Regular readers of this blog might know that I frequently cite the work of Professor Mark Tushnet of Harvard Law School to support my legal realist views of the Supreme Court. Mark’s iconic statement that “law is politics all the way down” neatly explains why law is not a special or unique discipline, while his book “Taking The Constitution Away from the Courts” persuasively describes the benefits of dramatically limiting the role of judicial review in our political system. For over three decades, Mark has been a leading progressive voice in the legal academy. Additionally, early in my career, Mark was a valuable mentor to me, providing sage advice and constructive criticism on numerous projects.
Erwin Chemerinsky and I have co-authored several pieces together and agree most of the time on politics and law. His book last year,
“The Case Against the Supreme Court” elegantly described the evils the Justices
have consistently brought down upon us over the last two centuries. He has also
been a friend and mentor to me over the years.
Both of these academic giants have recently written articles
imagining a new liberal majority on the Supreme Court and how such a majority
could dramatically alter the nature of constitutional law in this country. In The Atlantic, Erwin wrote
about how wonderful it would be if a new liberal majority would make abortion
rights more secure, allow for more expansive affirmative action, cut back on the
scope of and maybe even reverse Citizens
United, protect voting rights more vigorously, and end the death penalty,
among other progressive aspirations.
On the legal blog Balkinization, Mark went even further, arguing,
among things, that liberals and progressives should compile a list of cases
that should be immediately overruled (the likely targets being many of the
cases listed by Erwin), recognize that the lower courts are now staffed more by
Democrats than by Republicans, and therefore progressives should advocate “aggressively
liberal” arguments, and that folks on the left should “fuck Anthony Kennedy”
meaning “milk his opinions … for doctrines that might be awkwardly pressed into
the service of liberal goals.”
In essence, Mark treated the left-right constitutional divide
as a war in which, assuming Justice Scalia is replaced by Garland or another judge on
the left, the “winners” should remember that
taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown (and taking a hard line seemed to work reasonably well in Germany and Japan after 1945).
Not surprisingly, conservatives and right-wing libertarians
reacted harshly to these essays. Mark’s essay was the easier target given his
previous defense of limited or maybe even no judicial review. On Twitter, Randy
Barnett wrote “See how progressives' commitment to judicial restraint lasts
only as long as conservatives are in control.” Numerous other conservative pundits
lashed
out, including the always awful Ryan T. Anderson who accused Mark of analogizing
Christian conservatives to Nazis. Meanwhile, Erwin has been criticized
for imagining a “post-Constitutional” Supreme Court and for making the strongest
argument possible why
the Republican Senate should not confirm Garland or any other liberal nominee
who could provide the desired solid liberal majority.
Overheated rhetoric notwithstanding, I think liberals and
progressives who justifiably have been upset with the Court for the last fifty
years or so should take a deep breath. First, as I have written many times
before, it is unrealistic to think the Court will ever for a sustained period
of time strongly support progressive or even liberal causes. From 1857 when the
Court decided the infamous Dred Scott
case to 1936 when FDR threatened to pack the Court, the Justices consistently stood in the way of progressive reform and
only rarely helped the left. From 1936-1954, the Court mostly stayed out of
major political issues and was a neutral force in American politics. Then, for
maybe 10-20 years, the Warren and early Burger Courts were a reasonable friend
to the left, though decisions like Brown,
Roe, and Miranda fueled huge backlashes. Today, hardly anyone would argue
that our schools aren’t segregated, women have a secure right to abortion, or
criminal defendants are well-protected (the last category of cases being the only one where I might favor strong judicial review).
In any event, the Warren Court was short-lived. Since the
beginning of the Rehnquist Court in 1986, until the death of Justice Scalia in
February, thirty years later, the Court has mostly been an enemy of progressive
causes. Cases like Citizens United (campaign
finance reform), District of Columbia v.
Heller (gun control), Parents
Involved v. Seattle School District (affirmative action), and Shelby County v. Holder (voting rights) are just a few of many
examples. The Court’s protection of same-sex marriage is of course an important
exception but it is just that, an exception.
The hard question is whether it is in the long-term interests
of liberals and progressives (and the country) for scholars to advocate for an
aggressive Supreme Court if and when we have a clear liberal majority on the Court. I think that the answer may well be no, and that a posture of deference and
restraint (not total abdication) better serves both our political agenda and a principled approach to judicial review. (In fairness to Mark and Erwin, some of their proposals are geared towards returning issues such as affirmative action and campaign finance reform to the political process, but their motivation is to secure victory on specific causes, not to advocate for judicial restraint).
The cliché’ that those who ignore history will be doomed to
repeat it captures my argument. Those who came of age during the Warren
Court find it hard to accept the truth that over time strong judicial review
has rarely helped the left. After all, the entire enterprise of judicial review
is about enforcing the values and judgments of an ancient document written by
people who lived long ago. Even those who advocate for a “living Constitution”
recognize that judicial invalidation of legislation must be based on an
inconsistency between the challenged law and constitutional values reflected by
or through the text.
The problem for progressives is that constitutional values are hardly progressive values, and the Court, for that reason, has been much better at preventing change than fostering it. The Court effectively neutered the Reconstruction Amendments after the Civil War, which led to generations of Jim Crow. From 1930-1936, the Justices effectively blocked progressive legislation relating to unions and worker’s rights. By contrast, ten years after Brown, twelve Southern states still had 98% segregated schools, and 40 years after Roe, poor women in rural areas face enormously difficult obstacles securing safe abortions (rich and urban women had access to abortion even pre-Roe). There may be counter-examples, such as prayer in schools and free speech cases, but they do not outweigh the harm caused by the Court’s ability to prevent much needed change.
The problem for progressives is that constitutional values are hardly progressive values, and the Court, for that reason, has been much better at preventing change than fostering it. The Court effectively neutered the Reconstruction Amendments after the Civil War, which led to generations of Jim Crow. From 1930-1936, the Justices effectively blocked progressive legislation relating to unions and worker’s rights. By contrast, ten years after Brown, twelve Southern states still had 98% segregated schools, and 40 years after Roe, poor women in rural areas face enormously difficult obstacles securing safe abortions (rich and urban women had access to abortion even pre-Roe). There may be counter-examples, such as prayer in schools and free speech cases, but they do not outweigh the harm caused by the Court’s ability to prevent much needed change.
I am not arguing that the left, or our country, is better off
with no judicial review (as Mark once hinted). Where clear text is violated or paradigm cases arise, I
think the courts have an important role to play. That is why Plessy v. Ferguson was wrong and Brown was correct. Racial apartheid is
the paradigm example of an equal protection violation. But such cases are
rare. The Court uses judicial review far more frequently to block progressive change than to require such change.
When those on the left advocate for strong judicial
interference in public policy questions, they may gain a few short-term
victories (often symbolic) but they will inevitably enable long-term defeats.
Liberals and progressives ought to think about the long game and the role courts
should play in our system of government. Now might be the perfect time for us to maintain a principled stance against undue judicial aggression and maybe even suggest, as Mark did in his book, structural reforms as a condition to laying down our arms (requiring a super-majority of Justices to strike down federal laws would be one example).
History shows we should continue to, as Erwin did, make the case “against the Supreme Court” and also argue, as Mark has, that we should “take the Constitution away from the courts” because we are all better off when unelected, life-tenured judges only second guess the judgments of other political officials when absolutely necessary or when the case for such invalidation is obvious and clear. As both a matter of principle and politics, the left will likely do better when judges do less.
History shows we should continue to, as Erwin did, make the case “against the Supreme Court” and also argue, as Mark has, that we should “take the Constitution away from the courts” because we are all better off when unelected, life-tenured judges only second guess the judgments of other political officials when absolutely necessary or when the case for such invalidation is obvious and clear. As both a matter of principle and politics, the left will likely do better when judges do less.