Wednesday, June 11, 2014

How Constitutional Law is Like the Weather: Some Thoughts on a New Book by Laurence Tribe and Joshua Matz

by Michael Dorf

I recently obtained a copy of a new book by Harvard Law Professor Laurence Tribe and recent Harvard Law School graduate Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution. It's a terrific book. Here I'll provide a brief overview.

First, the disclaimers. Tribe was my principal mentor in law school and continues to be my friend. That has not prevented us from disagreeing on the merits of various legal questions, of course, most recently in our respective differing analyses of the options that would face the president in the event of a debt ceiling crisis, but I am hardly an objective observer of Tribe's work. Meanwhile, Joshua Matz's early career in the law thus far looks quite similar to my own a quarter of a century earlier: He has co-authored a book with Tribe (as I did); he's currently clerking for Judge Reinhardt on the Ninth Circuit (as I did); and will next clerk for Justice Kennedy at the SCOTUS (as I did). As it happens, I also got to know (and like) Matz during the editorial process of a paper I wrote for the Harvard Law Review when he was its Articles Chair. And as reflected in the acknowledgments, I read Uncertain Justice before it was published.

Uncertain Justice analyzes the work of the Roberts Court through chapters on nine categories of cases. The uncertainty to which its title alludes could be thought to point to an argument that Tribe made in the 1980s: that presidents who tried to shape the law by naming Justices who would do their bidding have frequently been frustrated when those Justices acted independently. Obvious examples of that phenomenon include the liberal "evolution" of various Republican appointees, including Earl Warren, William Brennan, Harry Blackmun, and John Paul Stevens. Whether those were true instances of evolution or rather reflections of different priorities for the presidents who appointed these Justices is an interesting question. My own modest empirical contribution to the literature on that question can be found in a 2007 paper in the Harvard Law & Policy Review.

In any event, there is in Uncertain Justice an echo of Tribe's earlier view: much of the book shows how Justices who are thought to be closely aligned with respect to ideology or methodology in fact disagree on important particulars. Think of the on-again-off-again cross-ideological alliance in favor of regulatory authority on free speech issues between Justices Breyer and Alito (discussed in chapter 4 of Uncertain Justice) or Justice Alito's willingness to join the liberals (minus Sotomayor) in parting company with Justice Scalia and the conservatives over the relevance of property to privacy in the GPS monitoring case (discussed in chapter 7 of Uncertain Justice).

Tribe and Matz do not argue that the intra-ideological disagreement or the cross-ideological agreement that they describe throughout the book results from Justices "going rogue" and disappointing presidents who appointed them in the expectation of reliably ideological votes. Instead, their argument is more in the tradition of modest legal realism: At least in the sorts of cases that reach the Supreme Court, there is sufficient uncertainty in the application of various methodologies to the relevant legal materials to support a variety of results. However, where cases have a clear ideological valence, Tribe and Matz acknowledge that ideology plays a major role.

Uncertain Justice also points to uncertainty of a different sort--the uncertainty of what follows from Supreme Court rulings. In the epilogue, Tribe and Matz contrast the view that Roe v. Wade played a substantial role in sparking the pro-life movement with what appears to be happening with same-sex marriage. How do we know whether a judicial decision will inspire backlash (as some say Roe did with respect to abortion), act as a catalyst (as United States v. Windsor appears to be acting with respect to SSM), or have little impact? Tribe and Matz say that we don't know. "Since the Court makes new law in many contested domains of American life," they write, "even the justices cannot know with any great certainty how the opinions they fashion will shape the future of the Republic."

That seems about right. In the leading study on the impact of Supreme Court decisions on public opinion, Nate Persily, Jack Citrin, and Patrick Egan find that most often such decisions have no real impact on long-term public opinion, but that sometimes court opinions inspire backlash, while other times they have a catalytic effect. Going in, one might therefore think that the most likely impact will be a collective yawn, but one cannot know for certain.

Not all that long ago, the conventional wisdom with respect to SSM and gay rights more broadly was that expansive court rulings would lead to backlash; now they're seen as a catalyst. Those stories aren't necessarily inconsistent, of course. Michael Klarman argued that Brown v. Board worked this way too: it inspired backlash in the form of extreme defenses of segregation in the South; and that in turn inspired backlash against the backlash in the form of national civil rights legislation. But even if Klarman is right (and his work on marriage equality is similarly nuanced), it's nearly impossible to predict that sort of complex chain of events in advance.

Put differently, one thread of the argument in Uncertain Justice contends (correctly in my view) that constitutional law is uncertain in the way that the weather is uncertain. There are so many moving pieces interacting in so many ways that any relatively simple model will have only modest predictive power, and less power as time goes by. That's true of ideological models no less than formal legal models. Admittedly, the "attitudinalists" can do a better job than the lawyers can in predicting the outcome of particular cases with relatively clear ideological valences. But neither sort of model is very good at telling us how the Constitution will be read a decade (or more) down the road.

For that sort of story, we need to watch the work of the Court (and others)  in real time. As we near the end of the first decade of the Roberts Court, Uncertain Justice provides a window on that process as it has unfolded. The book does an excellent job of showing where the Roberts Court has been and as good a job as can be done of showing where it might go next.