Wednesday, July 26, 2017

Can Lawyers Ameliorate the Trumpian Threat?

by Michael Dorf

My latest Verdict column takes issue with the tendency of the punditocracy to call every political issue with constitutional overtones a "constitutional crisis." I adopt and build a little on the typology of crises set forth in an insightful 2009 University of Pennsylvania Law Review article by Sandy Levinson and Jack Balkin. I conclude that the possibility of a presidential self-pardon--while despicable--would not plunge us into a constitutional crisis, because our existing institutions could readily resolve the legal question whether a president has the power to issue himself a valid pardon.

Of course, the particular institution that would ultimately resolve the question concerning self-pardons is the U.S. Supreme Court--either by deciding itself or denying review from a decision by a lower court. I don't mean to say that the courts will save us from Trump more generally. In the column I point to genuine constitutional crises that Trump may be spawning and which the courts will not be well positioned to block. Just what role law and the courts will play in reining in Trump is perhaps the most important question for persons with legal training who see Trump as an existential threat to liberal democracy.

In a recent Slate essay, Dahlia Lithwick praises public interest lawyers for fighting the good fight against Trump, but mostly laments the belief that lawyers and the law will save us. She writes:
Americans—myself included—are prey to a form of magical thinking about law and the Constitution. The Framers believed the law would fix it, and that makes it easy to hope that the lawyers will fix it. The lawyers became the wizards, and the Constitution became a book of spells, and the best thing a citizen could hope to do is make a donation to a group of lawyers who could perform the right incantations, fondle the correct talisman, and save democracy.
Lithwick's complaint is hardly new, but it combines three somewhat separate points that are worth unpacking. First, as Michael Kammen documented in his elegant book, A Machine That Would Go Of Itself, Constitution worship, in one form or another, dates back to the generation following the Founding. Second, legalification of social and political problems dates to the first half of the nineteenth century. In Democracy in America, Alexis de Tocqueville famously observed: "There is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question." Third and much more recently, Gerald Rosenberg diagnosed misplaced reliance on courts as agents of social change in The Hollow Hope.

Note that Kammen, Tocqueville, and Rosenberg are all making empirical claims with a negative evaluation. Kammen laments that Americans worship the Constitution as a kind of talisman, without really knowing what is in it. Tocqueville much admired American democracy, but he worried that the adoption of legal language for political discussions distorted the latter in ways that disguised power. He was, in a sense, a harbinger of legal realism. Rosenberg, meanwhile, is relentless. He has argued not only that Brown v. Board did not directly accomplish desegregation but that it did not--as his critics argue--even serve as a catalyst for political successes that then brought about social change; thus, he argues from this and other case studies, reformers ought not invest their time and energy in impact litigation as opposed to other activities.

In places, Lithwick's essay approaches Rosenberg in tone, but I don't read her as ultimately going there. Although the Slate editors titled her essay "Lawyers Aren't Wizards," the running head reads "Lawyers and the Constitution alone won't save us." The key word there is "alone." And of course that's right. No one I know--and I know a lot of lawyers who have spent most or all of their careers in so-called impact litigation for the ACLU, Lambda, and other public-interest shops--thinks that lawyers and the Constitution alone will get the job done. Invariably, such organizations combine a litigation strategy with a lobbying strategy with a public relations/education strategy with a mass mobilization strategy. Only a fool would think that lawyers and the Constitution alone would save us.

But is even the more modest point that I take Lithwick to be making--that lawyers can only do part of the job--correct? Or is Rosenberg's counsel of despair more appropriate. Maybe lawyers and the Constitution can't help us at all.

That's certainly wrong. The subtitle of Rosenberg's book is Can Courts Bring About Social Change? His controversial answer is "no, almost never." That very strong claim seems to me to have been proven wrong by events since the publication of the second edition of Rosenberg's book in 2008, when he argued that premature success in same-sex marriage litigation would lead to backlash--a reasonable prediction at the time based on the 2004 midterm elections, but one that has worn badly since. It is now fairly clear that success in the courts and success in the culture were mutually reinforcing.

I am willing to let that go, however, and concede for the sake of argument to Rosenberg that a legal strategy will not usually produce social change. Nonetheless, a legal strategy will often produce . . . wait for it . . . legal change. And sometimes, legal change is all you need from your legal strategy.

The Travel Ban litigation is a useful example. Lithwick lionizes the lawyers who rushed to the airports when Trump unleashed Ban 1.0. I much agree with her assessment. They accomplished three things of great value: (1) Particular foreigners who were being blocked from entering the country received direct legal services that, in many instances, resulted in their ability to enter; (2) for months, the ban was placed on hold so that people who needed to enter the country could, and even today, even after what I regard as at-best negligent attention to the case by the Supreme Court, much of the ban remains on hold; and perhaps most important (3) by winning early and often in court, and thus forcing Trump to retreat to Ban 2.0, the legal victories helped lock in a political narrative of the Trump administration as both cruel and incompetent. That may not be an example of courts and lawyers bringing about social change, but it sure is an example of litigation serving an overall political strategy.

There is considerable truth to Tocqueville's observation as critique, but the critical dimension misses the flipside of legalification: Because the law often reflects moral convictions, judicial victories (or defeats) can ramify in broader normative discourse. People see the courts telling the Trump administration it can't keep refugees out of the country because grandparents aren't close relatives and they infer--rightly--that the Trump administration is heartless. Sure, most people who were paying attention and not soul-dead would have reached that conclusion even before the Supreme Court endorsed it, but not everyone is paying attention.

Rosenberg has numerous critics in the legal academy, but to my mind his most effective critic is political scientist Michael McCann, whose work (especially his book Rights at Work) explores how litigation can operate as part of a mobilization strategy.  The question is not lawyers or street activists. The question is how can lawyers and street activists complement one another's efforts.

The answer is no one can know in advance. It is possible for litigation to be counter-productive. It is also possible for street protests to be counter-productive. Anything can spark backlash. But given the choice between a horrific status quo and a strategy for change that could bring about dramatic improvement while running the risk of making things even worse, the latter course seems like the better bet. So take to the streets and to the courthouse. And of course, also to the blogs.