an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Adam Liptak’s lead article in today’s New York Times underlines that the Supreme Court’s decision to hear the Arizona immigration case means (as the headline puts it) that the “case is the third accepted in a month on major political issues” (the others involve the 2010 health care law and the future of the Voting Rights Act of 1965). Many Supreme Court decisions can be fairly arcane. But sometimes they line-up with issues that are politically salient in party and social movement politics.
When this happens, law’s politics is foregrounded. Inevitably, scholars are asked to comment on the degree to which there is precedent for such fireworks. In Liptak’s article, various law professors are quoted suggesting 1936 and 1992 as parallels. The FDR vs. the conservative Court comparison is, of course, the most arresting alleged precedent. I confess that, especially if I am teaching undergrads, the temptation to draw this comparison is hard to resist. It imports a sense of high-drama portending a fundamental clash of political visions, to the point (possibly) of constitutional breakdown itself – enough drama to get my students to put down the iPads and to imagine they are witnessing, and participating in, a turning point in American history. For liberals, the 1930s clash, moreover, offers lessons/warnings about severe disjunctions between a Court and the politics of its times. For conservatives, interestingly, we see the mainstreaming of a new (old) interpretation: that the failure of the Court to stand up to the President in the 1930s invited into American government a Trojan Horse progressivism/socialism that destroyed the American constitutional tradition. Whatever your view – liberal, conservative, or just a professor desperate for student attention – there are thus lots of temptations right now to draw the New Deal parallel.
Of course, the 1930s parallel is catnip to the most ideologically inflamed on both sides. But the current politically salient issues aren’t really part of a systematic program set out (or invented) by Obama, as was the case with FDR’s New Deal. Despite our limping economy, the times aren’t (yet) as dire, and the measures under review aren’t put forth as a new way to rescue the economy in total meltdown. They involve a fairly random mix of policies in a diverse array of policy areas. It is possible they will be implicated in the election, and signal an ongoing turn rightward on the Court. But the 1936 comparison is a stretch.
I would add that not the least of the reasons for rejecting the “shock and awe” parallel of 1936 is what Yale political scientist Stephen Skowronek has called the “institutional thickening” that has occurred within the American state since the New Deal. Our politics and policies may swing back and forth between liberal and conservative, but (as the Reagan administration showed; see also No Child Left Behind), in its essentials, the New Deal state is deeply entrenched institutionally. Even conservatives are more likely to use that state to advance their own (micro) purposes than to disassemble it in any fundamental way (although there is a lot of ideological rhetoric out there these days insisting on their intention to do just that).
As for the 1992 comparison, the Times article notes that that term’s big decisions dealt with abortion, the freedom of speech, religion, and school desegregation. This comparison might be more apposite. One interesting feature of that comparison – not mentioned in the article -- is the degree to which 1992 involved the post-New Deal, Warren Court antagonism between liberals and conservatives over civil liberties and civil rights – culture war issues, in many respects. In 2012, the cases are much more structural. This may say something about the direction of constitutional antagonisms today between political opponents (maybe it is 1936! (which was largely about structure)). It may also mean that contemporary conservatives are increasingly inclined to use structural means to reach what are really cultural ends. Or, in a time of thickened institutions, it might mean that "shock and awe" constitutional revolutions are passé – that fundamental changes may now be enacted via slow-motion, structural adjustments (something John Roberts understands well). Or the differences between 1992 and 2012 might simply be random.