Strategic Litigation as Seen by Journalists and Academics

Mark Tushnet

Sunday’s NY Times had a story about “the network that took down Roe v. Wade.” From an academic’s point of view, the journalistic breathlessness (“told for the first time,” accounts of “secret meetings”) is dismaying. The story the authors tell is basically a story about how strategic litigation of all sorts occurs. I know about the NAACP’s school desegregation litigation campaign, the NAACP’s anti-death penalty campaign, and parts of the ACLU’s prisoners’ right campaign, and everything in the Times article can be found in those stories as well.

As far as I can tell, for example, the characterization of a meeting as “secret” means that the organizers and participants didn’t issue a press release before or after the event. The decision to issue press releases or otherwise make it widely known that a planning meeting is occurring or has occurred is choice made within the context of strategic planning—sometimes you’ll want to let people know, sometimes you won’t. The interesting point, again from an academic’s point of view, is what goes into making one or the other choice, and the article’s breathlessness prevents the authors from asking that question. And the same point could be made about each element in the Times article.

Put another way, the authors, for understandable marketing reasons, present a quasi-conspiratorial account of a right-wing litigation campaign, seemingly to discredit the campaign because it’s a right-wing litigation campaign. Maybe, though, one could read it is raising questions about litigation campaigns no matter what their political valence (though I don’t think such questions are serious). So, for example, one might ask about the possible lack of concern about the litigants the campaigners purport to represent to see how that plays out in this campaign as compared to others. That question surfaces at one point in the article, where the advocates for an incremental challenge to Roe lose out to the choice made by the lawyer for the actual litigant. An academic account would have given that moment a more prominent place.

(For what it’s worth, one of the major players in the article is Misha Tsetylin, who was a student of mine in the basic con law course at Georgetown. As I recall it, he was extremely articulate in presenting the then-standard conservative responses to then-standard liberal critiques of originalism, which meant that he was a valuable contributor to the class discussion. I don’t recall whether I was satisfied with having the standard arguments “on the table,” so to speak, or whether I tried to push the arguments beyond the standard ones [my vague sense is the former rather than the latter]. Again as I recall [which I suppose matters for student privacy reasons], I think he received either the highest grade in the course or one of the highest—which might be an anecdata point about blind grading and liberal bias, though I suppose it’s possible that on his exam he concealed his true views and so accurately parroted my own that I thought he deserved a very high grade! I think that that possibility is remote, of course.)