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