Balkinization: Constructing Basic Liberties: A Meta Review

Constructing Basic Liberties: A Meta Review

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Sanford Levinson

            In his New York Review of Books essay “Deconstructing Dobbs,” Harvard Law School professor Laurence Tribe offers persuasive criticisms of Justice Alito’s opinion for the Court in that case and its renunciation of Roe, Casey, and other cases that viewed reproductive rights as part of the basic liberties protected by the United States Constitution through the Due Process Clause. Although James Fleming’s Constructing Basic Liberties was written prior to Dobbs, it is obvious that he shares Tribe’s animosity toward the decision, based as it is on a thoroughly desiccated notion of how one identifies basic liberties. That is, the majority of the Court is now committed to a notion of “traditionalism,” also trafficking under the title “originalism,” that require a litigant to demonstrate that the particular conduct in question was in fact embraced by the relevant American public sometime around 1787 or, with regard to Fourteenth Amendment arguments, 1868. One could write an entire essay on the Court’s notion of the relevant public when it ostensibly tries to ascertain what has come to be called “original public meaning.” Does that include, for example, women and many other marginalized groups who, to put it mildly, were not viewed as members of what Stanley Fish would later teach us to identify as “interpretive communities” whose views were treated as authoritative within their domains, including, of course, the domain of constitutional law? For Samuel Alito, it is simply utterly irrelevant that prior abortion law was constructed exclusively by males. They are literally the only people whose opinions genuinely count in his version of the law. What Fleming does is to present a supple and sophisticated theoretical structure for what the title calls the “basic liberties” that Americans legitimately expect to be protected in the 21^st century, which very much includes reproductive choice. Interestingly enough, he derives his theory not from looking, say, at academic theorists—though he is certainly aware of contemporary arguments within the legal academy—but from very close analysis of basic Supreme Court cases. More than many legal academics these days (including myself), Fleming takes very seriously the opinions delivered by a wide variety of justices over the past century. He reads their opinions very carefully and draws from them a coherent theory of substantive due process that protects a variety of important liberties.

            Some readers may be surprised to discover that his judicial hero, in many ways, is not, say, William J. Brennan or Earl Warren, but, rather, John Marshall Harlan, who on notable occasions, including the reapportionment cases, dissented from quintessential “Warren Court” decisions. But Harlan wrote an opinion in a case involving Connecticut’s ban on contraceptives, dismissed on technical grounds, which he then incorporated into an eloquent concurring opinion in the famous case of Griswold v. Connecticut that invalidated the ban. Though William O. Douglas, for the majority, evoked the “penumbras and emanations” of the texts of several amendments within the Bill of Rights, Harlan, who viewed himself both as a conservative and as a traditionalist, rejected Douglas’s ostensibly textual argument in favor of one that emphasized the importance of American political and legal traditions. But Harlan importantly emphasized that tradition is “a living thing,” not ossified in any given past instantiation. It is up to judges to be sensitive to developments in this living tradition and, when need be, to write its teachings into concrete law. Thus he easily supported striking down Connecticut’s regulations on supplying methods of contraception even to married couples, even as Hugo Black dissented because the Constitution did not explicitly offer a textual protection of privacy. For Harlan that was (properly) irrelevant. Harlan offered a model of what University of Chicago law professor David Strauss calls “common-law constitutionalism.”

            Building on Harlan’s central insight, Fleming offers a painstaking analysis of what might be called the “canon” of cases, going back to the 1920’s, that find various libertarian protections in the Due Process Clause and create what John Hart Ely labeled the oxymoronic doctrine of “substantive due process” (as distinguished from a theory that would ask only if limitations on basic liberties had been adopted through proper procedures of, say, majority vote and then signature by the governor or president). Fleming is not naïve. He is well aware that the current Court is controlled by a majority totally unlikely to be sympathetic to his approach, as illustrated, obviously, is the Dobbs decision. But what he is doing, in essence, is creating the scaffolding of what might increasingly be termed the liberal “constitution in exile,” awaiting restoration when liberal Democrats are appointed (and confirmed) to the Supreme Court and can therefore eviscerate the mistakes of the current majority in just the same way that the current majority is happy to do with regard to decisions by its predecessors (often describing those decisions as “wrong the day they were decided,” which almost necessarily entails the suggestion that their authors were either knaves or fools).

            Political conservatives beginning in the 1980s often spoke of their own “constitution in exile,” and many devoted themselves to creating theories—including “originalism”—that could be drawn on when the exile came to an end. They are no doubt gratified by recent developments, and one can only hope that Fleming can achieve some of the same satisfaction in the future similar to that now felt by many conservatives.

            But it is at this point that I want to veer in a “meta direction,” away from any specific analysis of Fleming’s particular argument, built in some ways on the insights of Ronald Dworkin but far better developed, precisely because of its careful attention to actual cases, than anything ever written by Dworkin. Instead, I want to return to Tribe’s essay and its relevance to Fleming’s own project. It is worth quoting him at some length:

Whether or not one sees Dobbs as barely concealed theocracy, what seems plain is that the opinion fails to provide any clear secular support for its conclusion that Roe was wrongly decided, much less that it was so demonstrably wrong that the reliance of generations of Americans on its basic outlines should have been all but entirely disregarded. That degree of certitude and hubris can only contribute to the growing lack of respect for the current Supreme Court and feed the mounting conviction that it is not a body composed of fair-minded jurists to whom we should entrust these kinds of questions (emphasis added).

I think that, increasingly, the most important question one can ask is whether “we” (however defined) genuinely believe in the possibility of identifying a stunningly small number of lawyers who will be accepted as “fair-minded jurists to whom we should entrust” the kinds of questions that are entailed in debates about abortion, freedom of religion, sexual identity (and freedom), and access to guns.

Two things would appear to be necessary: The first is to identify what one means by “fair-minded.” Ironically or not, Earl Warren was (in)famous for often asking lawyers in particular cases whether the positions they were taking were “fair.” For many, that represented a refreshing move away from a kind of legal formalism that asked only if they were “authorized” (a strictly procedural view of due process) in favor of directing our attention to the concrete implications for living individuals of the arguments being offered the Court. Detractors, on the other hand, including his former law clerk John Hart Ely, viewed this as basically sentimental, inviting judges to impose their own views of “fairness” on the body politic. He thus expressed reservations about Griswold and then wrote a savage attack on Roe even though he supported reproductive choice politically.

The debate in many ways goes back to Justice Holmes’s typically cryptic dissenting opinion in Lochner v. New York:

[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States…. I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

There is an obvious tension between the recognition that we live within a pluralistic society defined by the existence of “fundamentally differing views” as to what constitutes the good life—and the role, if any, of particular rights in helping to achieve any given notion of a good life—and the assertion that there do exist “fundamental principles as they have been understood by the traditions of our people and our law.” To the extent that one believes in both the existence and knowability of such “fundamental principles,” then one will be sympathetic as well to the proposition that discrete judges can both discern and implement them. If, on the other hand, one is more impressed by a picture of American society as consisting, for better or worse, of groups with “fundamentally differing” and often incommensurable views who may be deeply appalled by the evil or decadent views posited by their adversaries, then why would one think that judges are likely to bring any resolution to such debates? And would any such success depend on a widespread and informed perception that the judges were now applying the “right” theory of interpretation, as distinguished from the presumptively dubious ones articulated in the now happily overruled decisions?

            It is, I think, this second question that makes one wonder not only about the likely audience for Fleming’s arguments, but also about the practical possibility of his teachings being generally accepted should the happy day come when Democratic presidents will appoint nominees who will proudly proclaim that they read and agreed with Constructing Basic Liberties. I return to Tribe once more, this time with regard to his famous 2005 letter to Justice Stephen Breyer, elaborated in a further 13-page explanation, as to why Tribe was abandoning his long-time project of writing a definitive “treatise” on American constitutional law that would truly rival that of Justice Joseph Story in the 1830s. Tribe had completed a first edition at the end of the 1970s, as well as a later second edition. But he then embarked on a much fuller revised version—until he abruptly stopped in 2005. Why did he stop? As he explained to Breyer, Tribe now saw only a ''seemingly irreconcilable division within legal and popular culture that is not amenable to the treatment that a treatise might hope to give such cases." “Constitutional law” (or theory) requires not only the setting out of an argument. It also requires, as a matter of social fact, a willingness of the relevant publics in general—whether professional, as within the legal academy, or elite opinion leaders, such as editorial writers for our major newspapers and other journals, or, ultimately, the general public, perhaps influenced by a variety of would be leaders—to accept the holdings of the judges, or at the very least to be “good sports” should they disagree and accept the law as handed down. Even in 2005, Tribe saw only “irreconcilable division,” as revealed in ever-more-common 5-4 decisions featuring angry and basically disrespectful dissents from the decidedly unhappy losers. Justice Scalia, for example, accused his colleagues of not “acting like judges” in their decision validating same-sex marriage in Obergefell v. Hodges. If one took that seriously, then his colleagues in the majority should have been impeached, for surely it should constitute the opposite of the “good behavior” accepted of judges that they no longer “act like judges” and instead simply impose their own personal preferences on the rest of us. Today, in a world of Facebook (Meta) and almost countless other forms of social media, together with a far more vitriolic and polarized political party structure, the socio-political consensus necessary for judicial legitimation seems more and more evanescent. The polarization of the Court is at least partially reflective of the highly polarized two-party system at the present time. For the first time in our history, there is no significant overlap in the votes of Democratic and Republican justices in the most contentious cases that come before the Supreme Court.

            Barry Friedman, in his 2009 book The Will of the People argued that the Court, generally speaking, came surprisingly close to mirroring the actual preferences of the American public. The so-called “median” justices, first Sandra Day O’Connor and then Anthony Kennedy, were, Friedman argued, close to the so-called “median voter. Both liberals and conservatives would applaud or object to given votes of these justices, but they were rarely perceived as wildly out of step. But now the “median justice” is probably Brett Kavanaugh, given that Chief Justice John Roberts is increasingly a leader without any dependable followers, as revealed in his lonely concurrence in Dobbs, rejected by his conservative and liberal colleagues alike. If it is true, as some political scientists argue, that the American public at large is less polarized than are public officials elected through the current party system, then perhaps one or two replacements on the current Court would restore the kind of acceptance evoked by Tribe. But one might doubt the likelihood of this happening, at least in the foreseeable future.

            The American political scientist Jim Gibson gave a talk at the University of Texas some years ago that had a deep impact on my own thought. In it, he explained that the Supreme Court’s ultimate power rested on what political scientists term “diffuse support,” i.e., a willingness to accept whatever decisions come down from the Court. This required paying no attention to the actual reasoning supporting such decisions. After all, extraordinarily few people, including lawyers, actually read the opinions. As he explained it, with regard to those few hot-button issues that actually reach public notice, 35% (let us assume) may support the decision, while another 35% are heatedly opposed. But support and opposition will be based on agreement or disagreement with the policies thought to be adopted (or invalidated) by the Court. But that leaves 30% who will respond to polls, according to Gibson, by saying “the job of the Court is to make tough decisions, and I’m not willing to criticize them for coming out as they did. They’re smarter than I am and know more about the law. They ruled, and is it the job of good Americans to back the ruling.” So what this means, practically speaking, is that the Court can (or could) rely on majority support for anything it does, where the majority is constituted both by those who affirmatively endorse the decision and those who offer the Court diffuse support. More recently, however, Gibson has written a major paper, based on polling data following Dobbs, suggesting that “diffuse support” for the Court has collapsed. Just as we no longer expect many Americans to accept any given presidential decision because, after all, it’s “the President,” surrounded by smart advisors, who believes we need to do X, it’s no longer clear that the Court should expect to benefit from institutional diffuse support. Thus the most recent polling by the Pew Charitable Trust indicates that 49% of the public has an “unfavorable view” of the Court, while 48% remain positive in their overall views. Other polls show similar or worse results (from the perspective of the current majority). Increasingly, it appears that most Americans are inclined to view justices as “politicians in robes” rather than as Tribe’s “fair-minded jurists to whom we should entrust these kinds of questions.” Dworkin famously described the Court as the distinctive “forum of principle,” in contrast to the presumably distasteful “political” branch particularly of the Congress. Most contemporary Americans, including many legal academics, are having an increasingly hard time telling the difference.
            So what would it take for a Court to be able successfully to impose a Flemingesque or Tribean vision of the Constitution? Justice Scalia famously suggested that it took a theory to beat a theory, and he suggested that “living constitutionalism” was theoretically weak, unable to surmount “originalism.” John Hart Ely elaborated a theory, which he called “representation reinforcement,” but, as already suggested, he had no sympathy for reading certain rights into the Constitution through the Due Process Clause. Tribe, in fact, notably attacked his colleague’s book as being much too proceduralist. Fleming now offers a carefully elaborated—and, surely, to many of “us,” convincing—theory of “basic liberties.” But the reason for the scare quotes around “us” is precisely my concern that this book, even if it is widely read, as it should be, will ultimately preach only to the already existing choir.

            Randy Barnett, Richard Epstein, and Michael Greve, to name only three notable conservative academics, did not succeed in bringing their version of the Constitution out of its exile because they persuaded a lot of general readers that their “liberal constitutionalism” was mistaken. Instead, they worked closely with well-organized movements within the legal academy—most notably the Federalist Society—and within the general polity and waited, in effect, for their time to come, which it most certainly did with the election of Donald Trump and the absolute devotion of Mitch McConnell and the Republican majority in the Senate to capturing control of the federal judiciary by any means necessary. Theirs was a political victory, not an admission of defeat by former adversaries who were in fact persuaded that we must all be originalists now or accept the illegitimacy of the administrative state because of dogmatic theories of “separation of powers.” As we should have learned after Appomattox, surrender on the battlefield does not mean that “hearts and minds” have necessarily changed with regard to the most fundamental underlying issues generating the battle, in that case the preservation of white supremacy. For most people on the left (including myself), the current Supreme Court majority is basically as “stolen,” in terms of the integrity of the process by which they got their lifetime jobs, as many people on the right believe (falsely, of course) to be the case with Joe Biden’s having become president.

            A last bit of quotation, this time from my own work, the 1988 edition of my book Constitutional Faith. (A second edition, published in 2011, explained why I had lost my own faith in the U.S. Constitution, but that’s another topic.) I concluded chapter one by noting that

It is ironic that a culture that has experienced what Matthew Arnold over a century ago described as a ‘melancholy, long-withdrawing roar’ from traditional religious faith can assert the continuing reality of a collectivity of citizens organized around a constitutional faith. The ‘death of constitutionalism’ may be the central event of our time, just as the “death of God” was that of the past century (and for much the same reason). Many in our culture have neither belief in the persuasive force of detached reason nor the ability to make a ‘leap of faith’ upon reaching the barriers of rational assent. The fact that the public rhetoric of American political culture remains organized, in substantial ways, as a faith community centered on the Constitution may mislead us as to the health of that culture. After all, as the senior Oliver Wendell Holmes reminded us in the “One-Hoss Shay,” a thinly disguised parable about classical Calvinism, a once-strong, indeed culturally dominant, mode of thought can collapse almost literally overnight.

We are not, I think, faced with the prospect that the Supreme Court, or the rest of the judiciary, will simply collapse. After all, most cases are of no interest to anyone other than the litigants, and it is essential to the workings of the social order that litigants be able to turn to more-or-less neutral (or perhaps better described as truly “indifferent”) adjudicators to resolve their disputes (and to be “good losers” if need be). This is why even countries identified as undoubtedly authoritarian may have relatively “independent judiciaries” at least with regard to some areas of law, such as the enforcement of business contracts.

But books like Fleming’s are not responses to the ordinary “private-law” cases decided by the judiciary. Rather, he is concerned with a distinct subset of cases that many people really do care about, often encouraged to do so by politically motivated “issue entrepreneurs” who see in the judiciary a useful issue around which to mobilize upset political bases. We are often likely to identify a “blockbuster” term of the Supreme Court by reference to literally no more than half a dozen of the roughly 60-70 cases it now decides during a typical year. And most works of “constitutional theory” concentrate on the issues raised by that minority of cases. During the upcoming term, this includes, in particular, affirmative action and the use of race in public decisionmaking as well as the freedom of “independent state legislatures” in essence to ignore their own state constitutions—and the opinions of state supreme courts—with regard to structuring elections. And, inevitably, there will be more cases examining the extent to which religious commitments entitle one to the “basic liberty” of exemption from following general state laws that apply to everyone else.

What some call the “crisis of judicial legitimacy” has little to do with preserving some kind of “independent” judiciary in a wide variety of cases. Rather, it has everything to do with the willingness of the general public to accept the kind of “common-law constitutionalism” valorized by Fleming, which depends in turn on acceptance of the wisdom and insights of those lawyers who become Justices, whether John Marshall Harlan, Thurgood Marshall, Clarence Thomas, Samuel Alito, or Ketanji Brown Jackson. So will the future return us to the halcyon days of “good sportsmanship” and acceptance of defeats? Or will the “melancholy, long-witdrawing roar” of a declining constitutional faith become ever louder and lead us to a much more radical revisioning of what we seek from the Supreme Court and its members?

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