Monday, September 21, 2009

Was There Ever a Time When Liberals Abandoned Legislative Change for the Courts?

A recent New Yorker article by Jeff Toobin profiles President Obama's approach to picking judges and to the role of the judiciary more broadly. To summarize: 1) Obama, having come of age as a lawyer during a period of retrenchment on liberalism and conservative judicial activism under Chief Justice Rehnquist, lacks the faith in courts as an engine of social change that one sees in somewhat older Democrats; 2) he therefore has relatively little interest in pursuing a political agenda via judicial appointments; 3) this "pragmatic" approach fits well with his broader "post-partisan" vision of American politics; and 4) on judicial appointments as on just about everything else, Obama has not been rewarded by Republicans, who treat even his centrist nominees to the courts and the administration as bomb-throwing pinko practitioners of identity politics.

I agree with much of the analysis in Toobin's article, but I want to question a premise of step 1: In Toobin's account (which is quite widely believed by legal academics and others across the political spectrum), during the heyday of the Warren Court, liberals came to think of electoral politics as hostile to their interests and fell in love with the courts as the true engines of social change. Here is Jack Balkin, quoted in the Toobin article, contrasting the Obama approach with the supposed approach of the earlier period:

“You start with the premise that the political branches are the first line of defense of constitutional rights,” Balkin said. “If you think that health care is a very important right that people should enjoy, you think that the best way to enforce it is for Congress to pass a law and the President to sign it. This is a very different model from the late sixties.”

This is not at all a different model from the late sixties or any other period. Liberal reformers (like conservative reformers, for that matter) at all times use a mixed strategy: Seek change by legislation where possible and by judicial action where possible. Thus, the mid-1960s gave us our most important civil rights legislation, the 1964 Civil Rights Act and the 1965 Voting Rights Act. True, Balkin refers to the "late sixties," which presumably begin with the election of President Nixon. Is it all that surprising that, having lost the White House, liberals would place somewhat greater emphasis on the courts?

Moreover, Balkin's example is very far-fetched. With the exception of Frank Michelman's Harvard Law Review Foreword (mentioned by Toobin), very few liberal legal scholars thought that the courts could or should find a range of positive rights like health care--i.e., rights to affirmative aid rather than rights against government intrusion or denial of equality--in the Constitution. Public interest litigation organizations rarely pursued such changes in the courts, knowing they would fail. As to health care, Democrats in Congress in the late 1960s and early 1970s were working assiduously (though ultimately unsuccessfully) towards universal health care, as were some Republicans. So too, the environmental movement didn't abandon the legislature for the courts in this period, giving us the Clean Air Act and the Clean Water Act, both signed by President Nixon.

Looking at the courts themselves, as the late John Hart Ely argued at length, the Warren Court was mostly about protecting the primacy of the democratic process. In the Toobin article, Richard Epstein says that Obama's vision of the courts in constitutional cases is the Carolene Products footnote 4 view, which is, I think, a fair appraisal. But that view--which says that courts should use the Constitution to protect disadvantaged groups and the political process from the tendency of incumbents to shut out competition--is the Warren Court legacy. That was Ely's whole point, and he was right.

Really, the only plausible counter-example, and it's cited by Toobin and just about everybody else who makes this point, is Roe v. Wade. But even though Ely didn't originally acknowledge the point, many others have attempted to fit the abortion right into the equal-rights-for-women paradigm. Some people find this persuasive; others don't. The controversy over Roe shows that there are borderline cases in the Carolene Products framework. It hardly shows that the courts or Democrats have been relying on a wholly different framework.

The same exact point could be made about the one substantial expansion of liberal rights under the Rehnquist Court in Lawrence v. Texas. Though decided as a matter of "liberty," the decision as easily could have been justified--and was justified in a separate opinion by Justice O'Connor--as resting on principles of equality. Griswold v. Connecticutwas a Warren Court decision, and it is hard to understand as protection for an oppressed group rather than in libertarian terms, but it was not nearly as controversial as Warren Court decisions (such as those protecting people suspected of crime) that did fit the Carolene Products paradigm.

So yes, Obama accepts the Carolene Products framework. But that is almost entirely an embrace, rather than a repudiation, of the Warren Court and those of an earlier generation who labored in both politics and the courts.

It's true that some liberals (e.g., Ronald Dworkin, Jim Fleming, Larry Tribe, me) would go further than the Carolene Products paradigm in some circumstances, but none of us has ever said that courts should be the first line of defense for rights, that we should give up on politics, or that something like universal health care should be accomplished through the courts. Toobin, Balkin and those who accept the conventional wisdom here are fighting a straw man.

Posted by Mike Dorf


Mortimer Brezny said...

Prof. Dorf:

I take you to mean that:

Legislatures are where rights are made; courts are where rights are enforced. Legislatures are where we debate values and forge compromises; courts are where we protect the integrity of our political system. One plausible exception to this is abortion rights.

The Republican view of late seems to be that legislatures should not enact social policy and courts should leave rights talk to citizens outside of public institutions (say, in talk radio). Most values determinations should be left to the states in the form of plebiscite. Anyone should be able to raise funds and criticize any politician or public body at any time. Rather than ordered liberty, it would seem Republicans want spontaneous order arising out of entirely free market activity, whether that free market activity features racism, sexism, homophobia, or other forms of inequality and disrespect.

How precisely do you reconcile these views? I see that you have noted Obama's centrist judicial nominees are disparaged as pinko commies, but if one party in a two-party system insists on calling centrist judges pinko commies, then how exactly are our political institutions supposed to function in accord with your model?

It is not just a court-loving liberalism that contemporary conservatives oppose; it is all government, even legislatures where grand compromises that 80% of the populace prefers are made. Doesn't your positive theory (while defensible against Toobin's conventional widsom straw-man) have to defend against, you know, political reality?

Michael C. Dorf said...


Excellent question (and welcome back to the comments)! I had not meant to be proposing anything really but making an observation about roughly the last 50 years of our politics. I think you are certainly correct that if the libertarian activists on the right have enough political power to block center-left/center-right government action, then that new political reality calls for a reassessment. I don't think we're there yet, however. Congress passed the TARP in the waning days of the Bush Admin and the stimulus in the early days of the Obama Admin. Neither program is perfect but both are very big government programs. So to my mind the jury is still out on whether the libertarian right will be able to block any substantial new legislation.

We may be on the cusp of a realignment. For roughly the first half of the 20th century, domestic national politics were mostly about the size of government and the role of government in economic affairs. For roughly the last half century, domestic national politics has been dominated by social/cultural issues (civil rights, women's rights, abortion, school prayer, gay rights, affirmative action, etc), even while most of the electorate probably still cared more about pocketbook issues (and national security). Liberals have grown accustomed to fighting social conservatives on the question of where government should intervene and where it should stay out. With the reversion to a fight over the size and role of government, we could see new alignments emerge.

I don't think this is likely in the short run, as the Republican coalition continues to contain both economic libertarians and social conservatives. But in the long run there's no reason why these groups are necessarily allies (as Mike Huckabee's career as Arkansas governor showed).

I confess to having no crystal ball here and to be expressing opinions based on the assumption that it is possible for Congress and state legislatures actually to legislate on important matters from time to time. Should politics make that impossible, my analysis would cease to be relevant. I don't think we're there yet, but I could be proven wrong.

tjchiang said...

Of course, no one is really suggesting that liberals gave up on legislatures completely. But it is a question of relative allocation of resources. I think it is fair to say that in the 1960s and 1970s, liberals thought (quite correctly) that courts would be more receptive to many parts of their agenda than democratic legislatures. And if you say that few liberals argued for positive rights, what of San Antonio Independent School District v. Rodriguez?

Of course, you might respond that Rodriguez is a case about equality. But then anything can be recast as a matter of equality. After all, a fundamental positive right to health care would equalize access to healthcare by definition; just as a fundamental positive right to education would have done.

Michael C. Dorf said...

tjchaing: States were ALREADY providing free public education to all children; the plaintiffs' claim was that they were doing so on an unequal basis. W/r/t health care, the equality argument would have to be that the govt funding of health care programs for some people--the VA system, prison hospitals, Medicare, Medicaid, --denies equal treatment to people not eligible because they aren't veterans, criminals, (sufficiently) poor, or old. That argument, like the argument in S.A. v. Rodriguez would fail because none of these distinctions is suspect. The fact that one could posit an equal outcome as a result of some program does not necessarily mean that, absent the program, whatever the government is doing must violate equal protection.

tjchiang said...

Michael, the descriptive facts of Rodriguez are not in dispute between us. Nor is there a dispute that both the plaintiff's in Rodriguez lost on an equal protection claim and that any plaintiff in a similar health care claim would lose. My point is that the dissents in Rodriguez are (1) comprised of liberals, and (2) arguing for "a fundamental right to education" as the district court had found. If Rodriguez had come out the other way--as liberals would have preferred--the argument that government provision of health care must be universal would no longer look so absurd.

In sum, the point is not whether the positive rights argument would win. It is whether liberals have implicitly made it in a serious manner. And I think it is clear that they did in Rodriguez, even though they lost.

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