Tuesday, August 11, 2009

A Call for Liberal Slogans

On Tuesday of last week, I was a panelist at the annual Practicing Law Institute all-day program reviewing the most recent Supreme Court Term. For me, it was an interesting day, and I hope it was useful for the audience members (both live and via the webcast). Most of the discussion focused on specific cases and doctrines, but during the introductory session and at various points throughout the day, we talked about jurisprudence more broadly. Here I want to follow up on a particularly interesting exchange.

There was general agreement that then-Judge (now Justice) Sotomayor's performance at her confirmation hearings reflected some sort of triumph of the conservative view of law. Jeff Toobin was the most critical of Sotomayor, although just about everyone agreed that her effort to sound indistinguishable from John Roberts at his hearings was, at best, a necessary evil to get confirmed. But the question arose: Why was this a necessary evil? With 60 Democratic votes in the Senate, why was it necessary for a wise and, heretofore outspoken Latina judge to pretend that appellate judging, even at the Supreme Court, involves the mechanical application of precedent?

NYU law professor Burt Neuborne had the most provocative hypothesis: Conservatives, he said, have done a much better job of articulating a jurisprudential philosophy than have liberals over the last generation, and the philosophy they have articulated--some version of judicial restraint plus originalism plus formalism--fits the lay public's view of judging. By contrast, the notion of a "living Constitution" is held up as a code word for judges imposing their preferences on society.

UC-Irvine Law School dean Erwin Chemerinsky demurred: Conservatives don't have a better, or even a consistent philosophy, he said. Look at their zeal for color-blindness, a principle that is hardly rooted in the original understanding of the Fourteenth Amendment's equal protection clause, for example. What conservatives have, Chemerinsky said, are oversimplifying and misleading slogans.

I'm inclined to split the difference. I think Chemerinsky is right that the actual performance of conservative judges and Justices belies the claims that they make to objectivity. However, I also think that Neuborne is onto something in noting that, nonetheless, the conservative dogma has broader public appeal. This leads me to think that what we liberals need are better slogans of our own. Just as John Podesta and George Lakoff successfully urged Dems to start adopting framing techniques that Frank Luntz pioneered for Repubs, so we need something equivalent for the judiciary. The idea would not be to replace a judicial philosophy with a set of slogans, but to come up with a set of slogans that captures the core of the philosophy and resonates with the public.

There is no shortage of candidates:

1) We could try to rehabilitate the "living Constitution," but I think it would be better to start over.

2) There are a lot of academic ideas that capture what liberals think good judging is about, but none of them is sufficiently sound-bitish. Ronald Dworkin's notion of "law as integrity" in which notions of political justice make cases cohere is attractive to some academics but too complex for public discourse. Lawrence Sager's notion of "justice-seeking" constitutional interpretation comes much closer, although it's still a bit too academic, as is Justice Breyer's notion of "active liberty."

3) I don't have a clear knockout, but my current idea would be for liberals to say that a judge in the American legal system should aim for "justice under law." This formulation acknowledges that judges don't simply impose their own idiosyncratic views of justice; they are constrained by law. However, by contrast with the formalist view (or with the amoral view supposedly expressed by O. W. Holmes, Jr. to Learned Hand, and predictably trotted out of late by right-wing pundits), the notion of justice under law emphasizes that the law ultimately is about justice. I also count it as a plus that "justice under law" is actually a familiar term in public discourse.

4) Still, we could do better, and there's no reason to limit ourselves to one slogan. Thus, I invite readers to come up with other candidates.

Posted by Mike Dorf

16 comments:

Orin Kerr said...

I blogged my thoughts about this problem over at the Slate Convictions blog back in May of 2008. An excerpt:

Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."

What does this mean for those who want to sell liberal constitutionalism to the public? I think it leaves open two basic options. The first is to try to beat Justice Scalia at his own game: Argue that limiting choices actually leads to better democracy. The idea here is that some limitations on democratic rule making actually enhance democratic rule making. This is a very popular move among academics, although it can be hard to sell to the public. The problem is that it's tough to reach consensus on why limiting choice is good for people and which choices should be limited. Theories abound from John Hart Ely through Justice Breyer and onward, but it's hard to pick just one theory above the rest. (Should we go with "Representation Reinforcement" today? Or "Active Liberty"?) The argument quickly splinters into many distinct academic claims, making it hard to coalesce around a single message.

The second option is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours? I think this is usually the most effective way to sell liberal constitutionalism. The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones. A lot of people will respond, sensibly enough, that good results beat out the potential for bad ones. This approach wins no prizes for theory, but my sense is that it often proves pretty effective in the court of public opinion.


Of course, if the marketing team is having trouble selling the product, one possibility is that the problem is the product, not the marketing team. But I gather that the assumption behind the discussion is that the product is good but the marketing is the problem.

Michael C. Dorf said...

Hi Orin,

Thanks for the comment. A few reactions:

1) Your two proposed approaches are not mutually exclusive. Indeed, they are mutually reinforcing: The bad results to which the Scalia method leads are evidence that limiting majoritarian outcomes (see how I avoid the term "choices") in the way that Scalia likes is worse than limiting majoritarian outcomes in the way that Breyer (or whoever) likes.

2) Another piece of the marketing program needs to be the Chemerinsky point: That the conservatives are driven by THEIR policy preferences, and use originalism etc. simply as a cover. From this perspective, the Sotomayor hearings were a huge missed opportunity for Democrats to endorse the sensible legal realism she had expressed in her speeches but which she ran away from in the hearings.

3) It's worth noting what a shift this is. During the Bork confirmation hearings, Democratic Senators (and then-Republican Arlen Specter) quite successfully challenged Bork on both of the grounds you suggest. It is somewhat mysterious to me why they're unwilling to make the same points now. I know of no public opinion polling suggesting that the public's view of law and judging has become more formalist in the last 22 years.

4) I am not simply ASSUMING that the problem is marketing rather than the product. I and many other liberal constitutional scholars have written at length elsewhere explaining why we think our product is better (and less deceptively packaged) than the formalist/originalist alternative.

5) Perhaps all of this is simply a specific instance of a more general complaint that I and others on the liberal/left have about the national Democratic party: When Republicans get power, even by the slightest margin, they exercise it; when Democrats have power, they tend to talk and act as though they are moderate Republicans.

Caleb said...

This might be a side point, but why not try to brand the conservative method as "constitutional archeology" -- hopefully conjuring up the idea that the conservatives are picking up a few bones here and there and assembling them into what they declare is a "skeleton", but which might be entirely incorrect. It might descend into mudslinging, but it seems like the left needs a pejorative term for conservative constitutional interpretation since, to me at least, "originalism" has the association that original = correct.

C.E. Petit said...

I'd like to suggest that the left needs to focus a bit more on what law actually is: Society's means of resolving disputes short of bloodshed. The legal rules — as important as they are — are only the rules of engagement (e.g., "the duellists may not reload their pistols"); individual disputes, however constrained by rules, still come down to individual circumstances. And that is where the conservative "agenda" fails: At its core, it denies that individual circumstances matter, and instead would rely on predispute "expectations" instead of the dispute as it actually occurs.

Rhett said...

My vote is still Democratic Experimentalism, Prof. Dorf. Gives it an entrepreneurial flavor. Goes to rugged individualist sensibility because of the decentralized power structure. Gives flexibility to fly-over states where they can do their own thing if it works on a pragmatic level. Rather than play to lowest common denominator, it inspires. The creators lead and there will be enough to follow to create a majority if necessary. America is an experiment. People would go for this.

I realize that this does not directly counteract Originalism/Formalism, but that's a good thing. Let it live but reframe the debate.

You could use your Internet powers to get people on board.

Paul Scott said...

"With 60 Democratic votes in the Senate, why was it necessary for a wise and, heretofore outspoken Latina judge to pretend that appellate judging, even at the Supreme Court, involves the mechanical application of precedent?"

Because they are still, mostly, old white men who work tirelessly to ensure that the economic advantages of their friends and benefactors is maintained.

If there is anything the first 6 months of an Obama Presidency with complete control of the House and Senate has done, it has made obvious what Europeans have always suggested - the difference between a Republican and a Democrat is very slim indeed.

Our Founding Truth said...

With 60 Democratic votes in the Senate, why was it necessary for a wise and, heretofore outspoken Latina judge to pretend that appellate judging, even at the Supreme Court, involves the mechanical application of precedent?

What happened to the first hundred-fifty years of precedent? Give me a break. Most judges don't have a clue what precedent is, nor have they studied the framers words.

michael a. livingston said...

I was going to suggest the People's Constitution, but this shows how lost I am in the 60s (70s).

Róbert said...

Dear Prof. Dorf,

It would perhaps be informative for the progressive-conservative debate on legal interpretation in the US to ask why the concepts of justice and law have now for several decades at least been accepted in most of western Europe as two interconnected parts of one general theory of constitutional interpretation most often called purposivism. The view that the meaning of legal rules, especially foundational rules like constitutions, must always be determined based on an assessment of the underlying purposes of the rule in question, seems I think to sit well with the average lay European. Whereas static notions of law as historical facts which therefore by definition necessitate the determination of the original meaning of the rule in question, form part of the minority view. The reason for this I think are to some extent both historical as well as cultural, an exposition of which is to long for this comment. But my larger point is that I think that the positive acceptance of purposivism here as a general approach to constitutional interpretation would be undermined if one would use notions such as "living" or other such concepts that progressives in the US have been using over the years. I am not surprised that Justice Sotomayor was quite aware that she could not argue for such a theory in the open setting of the Senate hearings. She would however have been able to say on open television that in interpreting the majestic generalities of the bill of rights and the amendments she would look to the underlying purposes of the rule in question. Reasonable Americans would have understood that and nodded favourable I think, at least those with a relatively moderate view of life and the law. The mere concept of "living constitutionalism" however creates in the mind of average people (perhaps mistakenly I am sure) that the democratic act of lawmaking is actually irrevelant as it is not determinative of what norm will actually regulate their lives. However, most reasonable people understand the notion that written rules of law are created with purposes (or multiple purposes) in mind. Law by definition is thus not a purposeless activity. Furthermore, it is more realistic to argue successfully to lay people that the application of law to actual events and facts must invariably involve the determination by lawyers of what those purposes are. In modern, pluralistic societies such as ours, the average person just doesn't understand the notion that legal norms change, live or that their meaning is always relative to day-to-day circumstances. I of course understand that from a purely legal perspective, the difference here is perhaps subtle, but from a rhetorical point of view I think it is crucial. Progressives and liberals in the US should therefore put up their hands and say goodbye to living constitutionalism in the debate and argue for the a theory of interpretation based on purposivism as the best notion of justice under law. Purposivism will if consistently and cleverly argued beat originalism in the long run.

Yours, Robert R. Spano, professor of law, University of Iceland.

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