Friday, May 13, 2016

Liberal Scholars Should Take a Deep Breath

By Eric Segall

Regular readers of this blog might know that I frequently cite the work of Professor Mark Tushnet of Harvard Law School to support my legal realist views of the Supreme Court. Mark’s iconic statement that “law is politics all the way down” neatly explains why law is not a special or unique discipline, while his book “Taking The Constitution Away from the Courts” persuasively describes the benefits of dramatically limiting the role of judicial review in our political system. For over three decades, Mark has been a leading progressive voice in the legal academy. Additionally, early in my career, Mark was a valuable mentor to me, providing sage advice and constructive criticism on numerous projects.

Erwin Chemerinsky and I have co-authored several pieces together and agree most of the time on politics and law. His book last year, “The Case Against the Supreme Court” elegantly described the evils the Justices have consistently brought down upon us over the last two centuries. He has also been a friend and mentor to me over the years.

Both of these academic giants have recently written articles imagining a new liberal majority on the Supreme Court and how such a majority could dramatically alter the nature of constitutional law in this country. In The Atlantic, Erwin wrote about how wonderful it would be if a new liberal majority would make abortion rights more secure, allow for more expansive affirmative action, cut back on the scope of and maybe even reverse Citizens United, protect voting rights more vigorously, and end the death penalty, among other progressive aspirations.

On the legal blog Balkinization, Mark went even further, arguing, among things, that liberals and progressives should compile a list of cases that should be immediately overruled (the likely targets being many of the cases listed by Erwin), recognize that the lower courts are now staffed more by Democrats than by Republicans, and therefore progressives should advocate “aggressively liberal” arguments, and that folks on the left should “fuck Anthony Kennedy” meaning “milk his opinions … for doctrines that might be awkwardly pressed into the service of liberal goals.”

In essence, Mark treated the left-right constitutional divide as a war in which, assuming Justice Scalia is replaced by Garland or another judge on the left, the “winners” should remember that

taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown (and taking a hard line seemed to work reasonably well in Germany and Japan after 1945).

Not surprisingly, conservatives and right-wing libertarians reacted harshly to these essays. Mark’s essay was the easier target given his previous defense of limited or maybe even no judicial review. On Twitter, Randy Barnett wrote “See how progressives' commitment to judicial restraint lasts only as long as conservatives are in control.” Numerous other conservative pundits lashed out, including the always awful Ryan T. Anderson who accused Mark of analogizing Christian conservatives to Nazis. Meanwhile, Erwin has been criticized for imagining a “post-Constitutional” Supreme Court and for making the strongest argument possible why the Republican Senate should not confirm Garland or any other liberal nominee who could provide the desired solid liberal majority.

Overheated rhetoric notwithstanding, I think liberals and progressives who justifiably have been upset with the Court for the last fifty years or so should take a deep breath. First, as I have written many times before, it is unrealistic to think the Court will ever for a sustained period of time strongly support progressive or even liberal causes. From 1857 when the Court decided the infamous Dred Scott case to 1936 when FDR threatened to pack the Court, the Justices consistently stood in the way of progressive reform and only rarely helped the left. From 1936-1954, the Court mostly stayed out of major political issues and was a neutral force in American politics. Then, for maybe 10-20 years, the Warren and early Burger Courts were a reasonable friend to the left, though decisions like Brown, Roe, and Miranda fueled huge backlashes. Today, hardly anyone would argue that our schools aren’t segregated, women have a secure right to abortion, or criminal defendants are well-protected (the last category of cases being the only one where I might favor strong judicial review).

In any event, the Warren Court was short-lived. Since the beginning of the Rehnquist Court in 1986, until the death of Justice Scalia in February, thirty years later, the Court has mostly been an enemy of progressive causes. Cases like Citizens United (campaign finance reform), District of Columbia v. Heller (gun control), Parents Involved v. Seattle School District (affirmative action), and Shelby County v. Holder (voting rights) are just a few of many examples. The Court’s protection of same-sex marriage is of course an important exception but it is just that, an exception.

The hard question is whether it is in the long-term interests of liberals and progressives (and the country) for scholars to advocate for an aggressive Supreme Court if and when we have a clear liberal majority on the Court. I think that the answer may well be no, and that a posture of deference and restraint (not total abdication) better serves both our political agenda and a principled approach to judicial review. (In fairness to Mark and Erwin, some of their proposals are geared towards returning issues such as affirmative action and campaign finance reform to the political process, but their motivation is to secure victory on specific causes, not to advocate for judicial restraint).

The cliché’ that those who ignore history will be doomed to repeat it captures my argument. Those who came of age during the Warren Court find it hard to accept the truth that over time strong judicial review has rarely helped the left. After all, the entire enterprise of judicial review is about enforcing the values and judgments of an ancient document written by people who lived long ago. Even those who advocate for a “living Constitution” recognize that judicial invalidation of legislation must be based on an inconsistency between the challenged law and constitutional values reflected by or through the text. 

           The problem for progressives is that constitutional values are hardly progressive values, and the Court, for that reason, has been much better at preventing change than fostering it. The Court effectively neutered the Reconstruction Amendments after the Civil War, which led to generations of Jim Crow. From 1930-1936, the Justices effectively blocked progressive legislation relating to unions and worker’s rights. By contrast, ten years after Brown, twelve Southern states still had 98% segregated schools, and 40 years after Roe, poor women in rural areas face enormously difficult obstacles securing safe abortions (rich and urban women had access to abortion even pre-Roe). There may be counter-examples, such as prayer in schools and free speech cases, but they do not outweigh the harm caused by the Court’s ability to prevent much needed change.

I am not arguing that the left, or our country, is better off with no judicial review (as Mark once hinted). Where clear text is violated or paradigm cases arise, I think the courts have an important role to play. That is why Plessy v. Ferguson was wrong and Brown was correct. Racial apartheid is the paradigm example of an equal protection violation. But such cases are rare. The Court uses judicial review far more frequently to block progressive change than to require such change.

When those on the left advocate for strong judicial interference in public policy questions, they may gain a few short-term victories (often symbolic) but they will inevitably enable long-term defeats. Liberals and progressives ought to think about the long game and the role courts should play in our system of government. Now might be the perfect time for us to maintain a principled stance against undue judicial aggression and maybe even suggest, as Mark did in his book, structural reforms as a condition to laying down our arms (requiring a super-majority of Justices to strike down federal laws would be one example).

           History shows we should continue to, as Erwin did, make the case “against the Supreme Court” and also argue, as Mark has, that we should “take the Constitution away from the courts” because we are all better off when unelected, life-tenured judges only second guess the judgments of other political officials when absolutely necessary or when the case for such invalidation is obvious and clear. As both a matter of principle and politics, the left will likely do better when judges do less.


Joe said...

Justice Souter's Harvard speech (video and text available) put a wrinkle on the "Plessy is wrong" comment & I think he made a good point. It is far from clear just how wrong it was at the time given the state of law.

Anyway, especially with Mark Tushnet's previous writings alluded in the text, his strong comments (including using Marshall and Brennan as models though during the Warren Court, "Brennan" was really a median vote -- see, e.g., NYT v. Sullivan with three justices wanting to go further). See also, e.g., his interesting book on guns where he argues the issue will not be solved by the courts one way or the other.

The courts in our country will play a strong role -- at the very least, the people overall show no interest in having them cut down their power to the degree let's say ES supports -- so it's important for liberals to be concerned by membership. But, it's a long game as RBG knows, and felt Tushnet was a tad heavy-handed as are some others who criticize the horrors of courts in recent years.

Joe said...

As to the "progressive" nature of the Constitution etc., sure ... the Constitution is a mixed bag though as with the Jack Balkin liberal originalist project, there is a lot of play in the joints to get a progressive result in various disputed areas.

Me personally, I appreciate different voices, so the various liberals (or whatever label we used) on the Court now are appreciated for their different tendencies. And, a Garland -- who appears to be a restraint sort of person -- would be a good addition. Ironically, probably the best the Republicans might hope for.

Shag from Brookline said...

I detect a faint-hearted liberal scholar with legal realist views of the Court.

Eric Segall said...

I am a liberal/progressive scholar all the way who feels that the Court is not our friend and also feels that, in any event, judicial review is only justifiable when based on clear text or paradigm cases.

Shag from Brookline said...

While I don't expect them to respond with comments to this:

"(In fairness to Mark and Erwin, some of their proposals are geared towards returning issues such as affirmative action and campaign finance reform to the political process, but their motivation is to secure victory on specific causes, not to advocate for judicial restraint)."

here at this Blog, perhaps they may do so elsewhere, including privately. Faint heart never won justice.

Unknown said...

One point I feel gets too far lost in discussion about the judiciary is the fact the courts are in many cases meant to be countermajoritarian. For example, the political majority said in the 1950s, "America must have segregated schools"; in the 1960s, "States can deny public benefits to People not conforming Their religious practices to what states allow"; in the 1980s, "You may not burn a copy of the U.S. flag"; etc. Meanwhile, the courts in each of these examples said, "No, the political popularity of such laws cannot override certain principles regardless of whether that popularity is a bare majority or unanimity." (Cf., Brown, Sherbert, Texas v. Johnson, respectively)