Tuesday, May 10, 2016

What's Wrong with the Law, and in Particular, with Harvard Law School

This is one of the more remarkable, blatant and contemptuous liberal screeds ever to appear on the Internet. I graduated almost fifty years ago from the school where this man now teaches, and to connect the dots from then to now is a task that is beyond my imagination. If you want to know how the left sees the law as a crude tool to get by judicial fiat what they cannot achieve through the legislatures, and if you want to know why the U.S. Supreme Court is no longer a court, but a Supreme Legislature that exists only to serve the left's political agenda, look no farther:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions). 
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. (They might be reversed, but now there’s no guarantee.)... What would abandoning defensive-crouch liberalism mean? ... 
1 A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
So much for the traditional doctrine of stare decisis ("to stand with the things that have been decided"): decisions that one disagrees with are simply wrong from the start and need to be overruled at the first opportunity. Do you notice the one case that is not on this man's list? (Hint: it starts with "H" and rhymes with "Yeller", and has to do with the Second Amendment.) It's probably omitted because, after all, the man does not want to lay all his agenda out there for everyone to see. He continues:
2 The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is 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.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
You're welcome to what your victory will bring, I'm sure ("let thy will, not My will, be done..."). If this is what they teach at law school, can the seminaries be far behind?

Want more? How about a few hints for liberal judges (Judge Reinhardt of the Ninth Circuit needs no lessons, since he wrote the book to begin with) on how to get around precedent without bothering to overrule it, or how to fashion doctrine to undermine one's political opponents:
3 Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling. Take Wal-Mart: Confine it to its unusual facts (a huge nation-wide class, a questionable theory of liability), and don’t treat it as having any generative power in other cases. Or Washington v. Davis, which said that disparate racial impact wasn’t enough to trigger strict scrutiny, but that sometimes such an impact could support an inference of impermissible motive: Play the “sometimes” for all its worth. Defensive-crouch liberalism was afraid to be aggressive about the precedents because of a fear of reversal by higher courts. That fear can now be put aside. (Judge Reinhardt’s essay on habeas corpus, in the Michigan Law Review, is an exemplary discussion of how liberals can exploit ambiguities and loopholes.) 4 Related: Remember that doctrine is a way to empower our allies and weaken theirs. Conservative decisions on class-action arbitration should be understood as part of a long-term project of defunding the left. Much of the current Court’s voting rights jurisprudence strengthens Republican efforts selectively to shrink the electorate. Similarly with campaign finance jurisprudence. I don’t mean that these doctrines are consciously designed by the justices to have those effects, but outsiders – academics and activists – should understand that that’s what they do. (Nor do I mean that the efforts always succeed – see Evenwel for a failure.)
So whom do liberals want to have sitting on the Supreme Court? Take a guess:
5 Our models are Justices William Brennan and Thurgood Marshall, not David Souter or John Marshall Harlan. With some ambivalence I’d add Justice Ruth Bader Ginsburg to the list, the reluctance arising from the fact that her work as a judge has been shaped more than it should be by defensive crouch constitutionalism, particular in her sensitivity to the possibility of backlash. Still, when the votes are there, she’s been much like Brennan and Marshall (personality aside). Famously, Brennan said that he’d been around long enough to know what it was like to win, and what it was like to lose, implying that “this too shall pass,” though it’s taken a long time. (Or, channeling Sophie Tucker [or Mae West, or Beatrice Kaufman], he'd been a winner and a loser, and winning is better.)
And he has saved his worst for the last (though I, too have lost all respect for his next target, after the unbelievably awful opinion he wrote in Obergefell v. Hodges):
6 Finally (trigger/crudeness alert), f[*** -- this is a blog for churchgoers--Ed.] Anthony Kennedy. I don’t mean that liberals should treat him with disrespect. But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial any more), but also trying to milk his opinions – and more generally, obviously conservative opinions – for doctrines that might be awkwardly pressed into the service of liberal goals. (Think here of how liberal constitutional scholars treated Kennedy’s [truly silly] concurring opinion in Parents Involved [“You can deal with the consequences of segregated housing patterns by locating new school construction carefully” – in districts that are closing rather than building schools], or his “views” about affirmative action, or recasting the Court’s federalism cases as actually good for liberals.) There’s a lot of liberal constitutional scholarship taking Anthony Kennedy’s “thought” and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it. (See agenda items 1 and 3 for how to treat those opinions.)
His parting shot may, alas, be the truest thing Prof. Tushnet wrote in his entire screed:
Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.
Have at him in the comments -- but please keep things on the Christian side of civil.


  1. One of the bases for his screed is, "The culture wars are over." This is an absurd assumption and history should back me up on my claim that cultural warfare is never-ending. The side that holds the high ground will eventually be put down and have to either mount a new offensive or to create a stronger army to push them off.

  2. To me, the devious and mendacious tone of the remarks you quote is uncannily reminiscent of the Screwtape Letters. However, these letters are only fiction, and have an underlying element of comedy, which is entirely lacking here. Devilish and evil!

    1. This whole business is an excellent example of judiciary impracticability. Decisions of the Supreme Court that a great many in the population (including lawyers) find indigestible (e.g., the 5-4 result in Obergefell) can, and should, be unnecessary and avoided, especially given the time on the Supreme Court that the average Supreme Court justice serves. So, an obvious "internal rule" for the Supreme Court: whenever a decision that turns on a Constitutional interpretation is headed for a 5 to 4 approval,the "5" will select one of their own who will recuse himself or herself with regard to the decision. A "4-4" split is far better, even given the outcome of variance among circuits, to the imposition of close-calls on Constitutional issues which, for compelling reasons including human fallacy and even issues of judicial "legislating", shouldn't turn on close-calls. On SC Constitutional "calls": a rule of "Minimum 6 to 3".

  3. You describe the screed as "liberal", which I fear is a word used too broadly to be sufficiently precise. I prefer the term leftist to liberal, because liberal is still used in an opposite meaning, such as "liberal economics", meaning free economics, or as used in the root of libertarian. But for consistency, I will use liberal here.

    I think of two entirely separate traits when I think of liberal justices: 1) disregard for the constitution and 2) political and cultural leftism (socialist/Marxist, anti-Christian).

    I think that disregard for the constitution does not occur among conservative (culturally, politically) justices, not because it is an exclusively conservative trait, but because conservatism includes honesty and integrity as core values. Many conservatives are generally also people of faith, and our Bible is clear in this area; "You must have accurate and honest weights and measures, so that you may live long in the land the Lord your God is giving you." (Deuteronomy 25:15) And as we Christians adhere to the Bible, we likewise respect the authority of the Constitution.

    I don't think it is impossible for a liberal justice to believe that the Constitution must guide all Supreme Court decisions. For instance, I think Kennedy is liberal, and yet he has restrained his liberal preferences in order to rule in a way that is consistent with federalism and other constitutional principles. I find it irritating when he is called a conservative, or even moderate, as I have never seen evidence that he holds politically or socially conservative values. I think this is misnaming his respect for the constitution as conservatism. The other liberal justices simply go with their own preference on what they consider important social decisions. And I believe they will avoid accepting a case until they believe the public will be willing to swallow their liberal decision, as the polls indicated they would swallow Obergefell. I don't know whether Kennedy would vote to decline cases that might lead to a conservative decision, or a liberal decision "before its time".

    You mention "stare decisis ("to stand with the things that have been decided")" as though violating it is inherently bad. Yet I think Roe v Wade should be overturned because it was a bad decision, one that establishes policy that belongs in the realm of litigation. Don't both left and right want to overturn what we consider to be bad decisions? Of course, the liberals want to circumvent the constitution anyway; of what consequence is "stare decisis" to them? I believe that they are only restrained by the possibility of revulsion among the general public and its political consequences.

    Has there ever been a conservative court that similarly rejected the constitution in order to advance their preference? A left-winger might say that Dred Scott was a conservative decision. I disagree, just as I disagree with the Lefties when the claim that Hitler's National Socialists were actually conservative (in the American sense of conservatism).

    And where the heck does Justice Roberts fit into this? He has rewritten laws (Obamacare's mandate tax) in order to allow them to stand. My impression is that he has generally respected the constitution otherwise. Does this make him a liberal along the lines of Kennedy, who will bend the rules to take a liberal position (for socialized medicine) on important cases, while otherwise acting with integrity in upholding the constitution?

  4. One last thing: You ask, "If this is what they teach at law school, can the seminaries be far behind?" The answer has been apparent for quite a while:

    I remember in 1999, reading about a lesbian radical professor at the Episcopal Divinity School in Cambridge. I was shocked! This was during a time of my inquiring, after my parish priest in Seattle had just given a sermon in which he claimed that Jesus had declared the gay community clean. This was the day after his attendance at the installation of an openly, actively homosexual man as the dean of our cathedral.

    In 2008, a priest I knew who had also fled (some years prior) the Episcopal Church USA, explained that when he had attended CDSP in Berkeley, CA, that some of them had described the seminary as Church, Drugs, Sex, and P... (I can't recall the last.)

  5. Correction: "...in the realm of legislation."

    "Yet I think Roe v Wade should be overturned because it was a bad decision, one that establishes policy that belongs in the realm of litigation."