Wednesday, September 28, 2022

What Futile Proposals Can Achieve

by Michael C. Dorf

My latest Verdict column urges Congress to enact legislation making clear that Title VI of the Civil Rights Act of 1964 does not bar race-based affirmative action by recipients of federal funds. As I explain in the column, depending on when such legislation went into effect, it would either prevent or reverse a decision by SCOTUS in the pending Harvard case, in which the Court will very likely hold that Title VI forbids nearly all race-based affirmative action. My proposed statute would do nothing for public colleges and universities like the University of North Carolina, the defendant in the companion case, because the Court will likely invalidate race-based affirmative action in that setting using the Fourteenth Amendment's Equal Protection Clause. Still, a half-victory via Congress is better than a total defeat via the Supreme Court; thus, my proposal.

However, as I acknowledge in the column, Congress almost certainly won't take the action I recommend, which would be opposed by all Republicans and some unknown but probably substantial number of Democrats, given what we know about public opinion regarding affirmative action. And so I conclude the column by asking whether there is any point in making proposals that are doomed to failure. I say that there is, citing how right-wingers played the long game on abortion. So too, progressives on race and other matters can make proposals now even if they have little chance of success.

In this accompanying essay, I'd like to expand a bit on that last point and say something broader about what might seem like futile advocacy. I'll identify five goals a scholar might have in making a law reform proposal that is doomed in the short term.

1) Scholarly Role. Until fairly recently and even today in many quarters, legal scholars understood their job as serving as a kind of shadow Supreme Court or, with respect to legislative change, a shadow Congress. We point out where jurists erred, where legislation misfires or serves the wrong values, etc. Even many scholars using non-doctrinal methodologies--whether law-and-economics, critical race theory, empirical legal studies, or something else--fit this mold. They identify some decision, doctrine, rule, or standard; subject it to their particular preferred analytical framework; and either confirm that the status quo is optimal or, more commonly, note its deficiencies and suggest improvements. Broadly understood, I would venture that most legal scholars produce some work in this vein; I know I do.

But it would be a mistake to assume that a scholar whose work takes the form "the courts should have decided the X v. Y case differently" or "Congress should amend Statute Z to say this" expect or even intend for the courts or Congress to pay heed. Sure, the author of such a work would likely be pleased if the scholarship had that sort of real-world impact, but normative scholarship about the law need not have that sort of practical objective. The scholar's most fundamental commitment is to intellectual honesty. If one's best analysis is that the court decided X v. Y wrongly or that Statute Z should be amended, and if one's scholarly expertise makes one well situated to make those points, then a scholar is not tilting at windmills by making those points. She is simply being a scholar.

2) Overton Window. Of course, some normative scholarship aims to have real-world impact. It can do so even if the scholar's proposals are not enacted, by making them part of the conversation. We have seen this phenomenon frequently on the right in the last several decades. Scholars gave voice to propositions that were once considered beyond the pale--e.g., the Second Amendment entails a right of all law-abiding competent adults to carry firearms in public places even in crowded urban areas--with the result that those ideas were increasingly taken seriously and then, once the courts had been packed with people who had developed sympathy for the formerly fringe ideas, those ideas became the law. From the liberal side, powerful advocacy for marriage equality at a time when the courts were not ready to recognize it nonetheless had an important impact on public opinion and ultimately on the courts as well.

3) Damage Control. Advocating for ideas that have no current chance of becoming law doesn't merely widen the Overton window so that they can become law at a later date; it also can prevent the window from opening too far in the other direction. Continuing to argue that there is a constitutional right to abortion has little chance of swaying the Supreme Court as currently constituted but doing so may make it harder for social conservatives to rule that the Constitution requires the government to forbid abortion. Having justified their decision to overrule Roe and Casey by claiming that the Constitution is neutral on abortion, members of the Dobbs majority are not well positioned to say that it requires abortion prohibitions.

4) Half a Loaf. It's also possible that a full-scale argument for some currently unrealistic proposition yields partial victories. In the early 2000s, the existence of arguments for marriage equality made civil unions look like an appealing middle ground to nervous politicians. Had no one been pushing the full equality argument, then promoting civil unions would have been seen as the extreme position.

5) Posterity. Arguments that fall on deaf ears in their own time may be picked up years or even generations later, when they find a more receptive audience. To be sure, that will more likely be true for sweeping arguments--like the defense of freedom of speech offered by Justices Brandeis and (eventually) Holmes--than for relatively specific ones--like my argument that Title VI should be amended to make clear it doesn't bar affirmative action. Still, even an argument for amending a statute can have a long shelf-life, especially where, as here, it concerns a "super-statute" that has been on the books for 58 years and will likely remain in force for many years to come.

Needless to say, the foregoing list is not intended to be exhaustive.