House-breaking Law Professors: Michael Klarman’s Backlash Thesis

Ken Kersch

As a political scientist interested in public policy, considered from an historical institutionalist and developmental perspective, I’ve long found Mike Klarman’s work integrating constitutional law and politics across time especially engaging. A week or so ago, the Boston Area Public Law Colloquium – run by my political science department colleague Shep Melnick, and Wellesley College political scientist Tom Burke – hosted a discussion of Klarman’s work-in-progress on same-sex marriage cases and political backlash. Mike joined the interdisciplinary gathering at Tom’s Cambridge apartment for a spirited discussion of drafts of four chapters from this book project. The book on same-sex marriage will be pulled out of an even more ambitious project that, in addition to same-sex marriage, looks at the dynamics of backlash against court decisions in the areas of abortion, the death penalty, school desegregation, and criminal procedure.

These days, empirical legal scholarship is all the rage. Few of the ragers, I would imagine, are reading Mike Klarman, whose empiricism is derived from the old-fashioned fact-chasing known as “history.” But the sorts of empirical questions Klarman is currently addressing are about as consequential as any being asked today. Traditionally, most discussions of constitutional law – by those in the legal academy and in political science alike -- are court and judge focused. The decision issued by the judge is the end point of the inquiry. For political scientists, the question is often ‘what made the judge vote this way rather than that way?’ Was it his or her ideology? His or her “attitude? Policy preferences? Race/class/gender? Political party membership? Regime membership? Social movement norms? The law (as properly read, or misread)? Oral argument? There are some variants. Why did he or she write the opinion in the way he or she wrote it? Was the judge acting strategically to win over the votes of colleagues? For law professors, the question is often what does the law say about how a conscientious, law-following judge should vote in a case (and, in doing so, explain his or her decision in writing a judicial opinion). What did the law command? Did the judge follow the law or not? If not (politics aside – that’s for political scientists, and their law professor fellow-travelers – the feminists, (old school) crits, law-and types, and, most recently, born-again crits who now take their politics from mainstream political science instead of Marx), why? Where did his or her understanding of law/factual assumptions/logic go wrong? A variant is normative legal scholarship, which, rather than just critiquing an opinion, makes the case, in advance, about how a judge who gets the law right should vote in deciding a particular case, and, for good measure, write the judicial opinion justifying the vote.

Klarman’s approach to constitutional law in his backlash work is different. The court decision is not Klarman’s end point, but his starting point -- his independent variable, if you will. Klarman’s dependent variable is what actually happens in the end on the issue on which the court has spoken. Put otherwise, his dependent variable is the public policy ultimately adopted by the government on same-sex marriage, abortion, the death penalty, school desegregation, criminal procedure, etc., in the wake of a (controversial) court pronouncement on the issue. He asks us to consider what effect the fact that a court acted as it did, when it did, had on the ultimate adoption of governing public policy in the area (and other areas that we also care about that might be affected by the court’s action). As it happens, Klarman is pretty skeptical about the ability of court pronouncements to dictate public policy to the polity – at least in these highly contentious areas. And he seems to enjoy saying so, especially given what he sees as the inordinate faith that his fellow law professors and lawyers seem to have in landmark court rulings, and their attendant ringing declarations of constitutional principle. It is not just that lawyers and law professors have inordinate faith in judicial pronouncements. It is that, in their unwillingness to look beyond the uncorking of the champagne after the court victory itself, they are actually helping thwart the achievement of very policy objectives they seek to achieve. Often, they make things worse than they would have been if the court had never issued the ruling at all. The culprit is the dynamic Klarman calls backlash: once the court takes up the question, and rules, other members of the polity will, in turn, react against the ruling. These reactions, he instructs, are well worth noting, and assessing.
The notion that a celebrated constitutional ruling (ostensibly) advancing civil liberties or civil rights might, if more effectively assessed, prove counter-productive is, of course, not new to Klarman. Political scientist/law professor Gerald Rosenberg’s The Hollow Hope (1993) famously (and controversially) made the same basic claim. Actually, Klarman’s already-published work on backlash is more normatively agnostic than is Rosenberg’s. Klarman’s assessment of the Court’s decision in Brown v. Board of Education (1954) is that it provoked backlash from enraged Bull Connor types in the South, and that it helped advance civil rights not as a direct result of its pronouncements themselves, but by sparking a southern backlash so ugly that it spurred aggressive northern political action in service of the cause. If one’s goal is policy advance in a controversial area, then backlash, in Klarman’s account, might actually prove quite productive.

What is different about Klarman’s approach is that it insists on considering the effects of judicial rulings within the context of larger, dynamic regulatory systems. Although he does not formally model systems, Klarman’s inclination is to move in a direction more characteristic of economists who fashion elaborate models of the macro-economy with the aim of giving useful advice about the likely effect of a particular policy initiative/decision on the whole – all things considered.

There are political scientists in the subfield of public policy and political development who are interested in similar system-wide dynamics. They study such things as “system effects” and “policy feedback.” (See, e.g, Paul Pierson, “When Effect Becomes Cause: Policy Feedback and Political Change,” World Politics 45 (July 1993): 595-628; Joe Soss and Sanford S. Schram, “A Public Transformed? Welfare Reform as Policy Feedback,” American Political Science Review 101 (February 2007): 111-127; Alan M. Jacobs and R. Kent Weaver, “Policy Feedback and Policy Change” (2010), etc.). The seminal APD scholars Karen Orren and Stephen Skowronek, employing a memorable image, insists that, so far as policy and political development are concerned, ‘all the world is downtown Tokyo’ – that is, dense with pre-existing institutions, and that realism counsels that we actually think of it that way in accounting for the effects and causes of change. Though they often don’t recognize it, much of this systems-regarding work is either indebted or consonant with the work (particularly concerning law) of the (first, non-dogmatic, generation of) neoconservatives, like Edward Banfield, Donald Horowitz (see his Courts and Social Policy (Brookings, 1977), and even the likes of Karl Popper and Michael Oakeshott, who were resolute anti-utopians; they wrote about the perils of an unrealistic rationalism about policymaking in a complex world where it was actually quite difficult for state actors to draw a straight line between action and objective, where consequences of purposive action were often unintended and unpredictable, and where (as they saw it) humility and caution should be the watchwords much more often than they seemed to be.

Rather than assess whether Klarman is right about the dynamics of backlash in the case of same-sex marriage (or seems likely to be in the other policy areas he plans to address), I simply want to underline that what he appears to be doing in this important work is insisting that his fellow law professors and lawyers put their simplistic, linear assumptions about landmark judicial pronouncements behind them, and get serious about thinking about judicial rulings as part of broader, complex, and dynamic political and policy systems. This makes Klarman an anti-utopian – or, put otherwise, a realist. He is definitely asking the right (empirical) questions.







Posted 11:51 AM by Ken Kersch [link]