So much of interest happened at the AALS Con Law Conference last week, that I thought I’d devote a few more posts to it. This one is a follow-up on the notes I posted regarding my keynote speech at the lunch on Friday. In an ad lib, I ventured that the median point of opinion in the legal academy is probably about one standard deviation to the left of the median of public opinion in general, while the median point of opinion in the U.S. Supreme Court is about half a standard deviation to the right of the median of public opinion. Nothing turns on whether I have these numbers right; the key is that law professors are, on average, substantially more left/liberal than the current Supreme Court Justices, on average. That seems unassailable.
I offered my assessment of the academic/judicial divide as part of the explanation for the growing distance, over the last 20-30 years, between the concerns of the legal academy and the concerns of the judiciary. In the Friday afternoon session on constitutional theory, Mark Tushnet suggested that the political distance between the legal academy and the Court also explained (in part) the decline, over the last decade or two, of Dworkinian constitutionalism.
Ronald Dworkin, recall (or learn now for the very first time!) has long argued that the job of a Supreme Court Justice in a constitutional case (and more broadly, the job of a judge in any precedent-based legal system) is to answer each question in the way that: 1) best “fits” the pre-existing law and also 2) best “justifies” the law, where notions of “best” invoke principles of political morality. Reams of books and articles have been written about Dworkin’s theory—some supportive, some critical—but for the novice, try understanding it as applied Rawlsian constructivism: A Justice should answer a constitutional question in the way that makes the law best hang together. So long as the Supreme Court was issuing generally liberal opinions, one could do Dworkin’s work from the left/liberal side of the political spectrum (which is where Dworkin is, along with most of the legal academy, including yours truly). However, as the Court has become increasingly conservative, Tushnet said persuasively, it has become increasingly difficult to rationalize the decisions via left/liberal principles: The “fit” work has become just about impossible. This explains why, Tushnet said, Dworkin’s own writings in the NY Review of Books in recent years have been principally devoted to arguing that the Court is screwing up or worse. (E.g., here.)
“Fit” work from the right should be easier to do these days, and yet we see almost no right-wing Dworkinians. Why not? Tushnet argued that this is because conservatives tend to be committed to originalism, not Dworikinianism. I agree with this as a partial explanation. Indeed, I have ong thought that champions of the personal/self-defense view of the Second Amendment might have a better argument for an unenumerated right to self-defense---perhaps extrapolated from the Second Amendment---but because unenumerated rights are a bogeyman for much of the right (with notable exceptions like Randy Barnett), they insist on making the argument principally in terms of the original understanding. I also claimed in a 2005 FindLaw column that the pro-life movement blew its best shot of winning the Terri Schiavo case because it was unwilling to make an unenumerated rights claim until very late in the litigation.
Here I’ll suggest one additional explanation for the right’s failure to develop a right-wing Dworkinianism: guilt by association. Because Dworkin is liberal, they assume that his method produces liberal results—even though Dworkin himself has acknowledged that this need not be so, and it seems self-evident that a conservative conception of political morality will lead to a much different set of outcomes from a liberal conception.
One can see something like the mirror image of this phenomenon in the hostility to originalism of liberal judges in other constitutional systems. As
Posted by Mike Dorf