Tuesday, July 29, 2008

Is Clarence Thomas Really a Jeffersonian?

In my latest FindLaw column (now available here), I use the occasion of the enactment of California's trans fat ban to explore how a fundamental premise of early American federalism has been largely eroded by the integration of the national economy. The premise was that substantial portions of the economy truly were local, so that states could be given primacy over them. I explain how, absent federal regulation, interstate firms are likely to comply with the most stringent state regulatory regime, and then to seek federal laws that set lower standards while preempting state laws. Along the way, I link Clarence Thomas to the anti-bigness tradition of Thomas Jefferson and Louis Brandeis.

Here I want to problematize that linkage by noting that Justice Thomas seems every bit as committed to the big business agenda of the conservative wing---indeed of all nine members ---of the current Supreme Court. To put the point in a way that doesn't single out Justice Thomas, it's striking how economic populism seems to have no voice at all on the current Court. Populism per se gets some representation, as when Justice Scalia, dissenting in Romer, accuses his colleagues in the majority of taking sides in the culture war. But economic populism is essentially invisible. Jeff Rosen's piece in the March NY Times Magazine, Supreme Court, Inc., pretty accurately captures the point.

Now the question: How come? Economic populism is not the dominant ideology of contemporary American politics, but surely it is a powerful force on both the left (John Edwards) and the right (Pat Buchanan/Mike Huckabee). The answer, I think, is that it's just about invisible in the legal elites of left and right. The right is positively hostile to what would count as economic populism in law, through its support of tort reform and the law & econ movement. And meanwhile, the left is at best indifferent. Liberal legal elites tend to oppose draconian tort reform but they (make that "we") tend to be much more interested in civil rights plaintiffs than in other tort plaintiffs. With rare exceptions, elite law schools do not produce plaintiff-side tort lawyers.

That's not to say, of course, that the only way one could be an economic populist judge would be by first working as a plaintiff-side tort lawyer, but it does explain why the sorts of people who are most likely to be economic populists in law are unlikely to become federal judges.

Posted by Mike Dorf


David Crowley said...

A trivial, hackneyed point: Jefferson wasn't as principled as he would have liked history to believe. The celebrated opponent of excessive executive and federal power was, after all, "the decider" who executed the Louisiana Purchase. Although he had constitutional misgivings, he placed them aside for the sake of achieving his policy objectives, explaining: "To lose our country by a scrupulous adherence to written laws would be to lose the law itself." (I believe this quote is in Ellis' American Creation at 226.)

A point more relevant to the Findlaw column: California may distort the ideals of federalism by its sheer size, but would the founders have been unfamiliar with this phenomenon? I am not knowledgeable enough about the history to speak intelligently about it, but I would not be surprised to learn that the internal policies of Virginia, Pennsylvania, New York, and Massachusetts created externalities that frustrated the preferences of Georgia, Delaware, and New Hampshire. Relatedly, the tensions between the states caused by the diverse regional economies are well documented. (Fun fact: the signing of the Treaty of Paris, and with it British recognition of the United States' independence (!), was significantly delayed while Peace Commissioner John Adams fought adamantly for New Englanders' fishing rights in waters near Canada.) We may have more of a national and global economy than the founders did, but it is very likely that they appreciated the effect that one state's policies would have on the rest of the states.

smcelhaney said...

While I agree with the general proposition that among legal elites -- especially those who populate elite/"national" law schools -- there is a perception that the more "sexy" topics focus on federal (or "national") issues such as civil rights and constitutional law, I wonder if the absence of economic populism on the Court stems as much from what has become the traditional source of justices: the federal courts of appeals.

One striking feature of the current Court is that all of the justices came from federal courts of appeals (although Souter was only briefly on the First Circuit, having previously been on the New Hampshire Supreme Court). As such, the current justices likely dealt much more with federal issues, and not by and large state issues such as tort cases. The careers of the current justices before they became judges also bear this out.

Turning to the "liberal" side, if liberal economic populism correlates with being attuned to the plight of plaintiffs who bring tort claims (which are predominantly heard in state court), I wonder if the absence of liberal economic populism on the Supreme Court is related to the fact that (with the exception of Souter) none of the more liberal members of the Court are former state appellate judges. For example, if President Clinton had looked to moderate to liberal state court judges who were attuned by their experience as lawyers and judges to tort issues, would it be more likely that there would be a liberal economic populist voice on the Court?

Tam Ho said...

While it's certainly plausible that civil rights cases are sexier than tort cases, I'm not sure that that's actually true, or if so, whether it has to be the case. I can easily imagine a very compelling - and accurate - narrative on the economic and personal injuries suffered by tort plaintiffs as collateral damage to the industries that sustain our way of life.

Instead, I would hypothesize that the liberal legal elites' neglect of tort plaintiffs is caused, whether directly or indirectly, by the widespread perception that personal injury lawyers are somehow an inferior breed.

As someone who's interested in why public perception of lawyers is so poor generally, this is a hypothesis which I would be greatly interested to see explored.

Unknown said...

Tam Ho...

I am with you on your points. As a practitioner and adjunct professor, I continue to pin a great deal of blame on the zealous advocacy theory ingrained in the majority of law school students. In the realm of PI, all you have to do is watch some of the training media out regarding the preparation of witnesses and tricks to play in deposition and on cross to see that, in many cases, lawyers have no interest in reaching any sort of "just" or "legal" conclusions...these ideas are simply woven into the definition of "whats best for my client." The thought then becomes that the adversarial system will somehow sort this out (which is almost like saying two wrongs will somehow equal a right if both lawyers are simply playing their games and pandering to the jury). As a practitioner, I find that many of the terrible perceptions are usually pretty well justified, and that ethical attorneys that serve the principle of the law (note: not positivistic or formalistic adherence to the written words) are the exception rather than the rule. I think that many of the poor perceptions of lawyers, and the legal system in general, can be traced to the myriad of arguments that we have in jurisprudential settings regarding how best to build the legal framework. One can then lay the blame on both the system which perpetuates the problem, and the attorneys that manipulate the system to their client's advantages.

Which brings us back to tort reform...it would be fantastic to curtail those who take advantage of the system, but that assumes the system is blameless and insurance companies corporations and the like do not need to be curtailed in their abuses, or that the regulatory system actually works. I end up in the sad and depressing reality that, given the fact that we are human beings (terrible and nasty creatures), we have to live with all the problems since we will only find a way to abuse and screw up whatever system we implement that may or may not be better. It comes out to a very Hobbesian outlook, but after many years as a human rights and environmental attorney, I have reached the conclusion that we can only be happy with small victories and realize that within a short while, someone will have figured a way around them and more likely, pushed things further back than where we started. It amazes me that we always end up being only out for ourselves when, in reality, we depend so greatly on others in every setting to contribute to what we are...it a hell of a philosophical contradiction and quandary...

Sobek said...

"but surely it is a powerful force on both the left (John Edwards) and the right (Pat Buchanan/Mike Huckabee)."

Except that Buchanan is a political non-entity, and Huckabee sank like a stone as soon as conservatives figured out who he was. Edwards, by contrast, came in second in '04 and was Kerry's pick for veep (his poor showing in '08 probably has more to do with the '04 stigma than with wholesale rejection of economic populism by Dems).

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