Who Is The Audience For This Book?

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).     

 Sanford Levinson

          In Constitutional Symmetry:  Judging in a Divided Republic, Zachary Price captures the sense that I suspect that many of us feel about the current reality of politics in the United States.  In particular, he focuses on the undoubted fact that the polity is suffering from a kind of polarization that rationally leads many—perhaps most—thoughtful observers to an increasing sense of hopelessness about the ability of those purportedly “leading” the country to confront the pressing challenges facing us.  Some of these, such as climate change, are potentially existential.  And, of course, the election of a pathological lying narcissistic grifter as President does not help.  As an earlier theorist of politics once asked, “What is to be done?”  We know what Lenin’s answer was, and few of us are really happy to follow his model.  But the question remains all too powerful. 

          Professor Price, perhaps reflecting his position as a professor of constitutional law, offers what to many might seem a peculiar answer to the question.  That is, he turns away from my own obsession with constitutional reform, which to most people I know seems too radical or else simply impossible.  But he also pays no real attention to what one might do with regard to Congress and presidents with regard to their own revealed deficiencies.  Instead, he focuses exclusively on what the Supreme Court might do to help.  I will turn presently to his overarching suggestion.  It is worth noting, though, the degree to which he, like most legal academics, almost grotesquely overemphasizes the importance of the Supreme Court.  Whether by offering excessive praise, as many liberals did with regard to the so-called Warren Court, or perhaps justified condemnation, as with the present majority, one might well be exaggerating the actual role of the Court.

The lamentably late Fred Schauer wrote a brilliant “Foreword” to the Harvard Law Review almost two decades ago in which he noted that the Supreme Court in fact has relatively little to say about the issues that most Americans actually care about and keep them up at night with worry.  This does not require gainsaying the genuine importance of, say, abortion, and affirmative action, but they are nowhere near the top of the list of what concern most Americans—and even most legal academics in their ordinary lives.  I am certainly not arguing that the Court is truly irrelevant, that we can safely ignore it.  Like many of my liberal colleagues, I am almost physically repulsed by reading its contemporary decisions and think that they are, as a whole, harmful for the future of our country.  The enforcement of the judicially-manufactured “major questions” doctrine and the reversal of Chevron may indeed make it more difficult for the Environmental Protection Agency to stave off additional global warming and condemn our children and grandchildren to a perilous future.  And its decision granting Donald Trump basic immunity for any crimes he may commit as President was outrageous.  Granting this, it remains the case that the principal problem is the inability of Congress to act, even if we did not have a sociopathic president who believes, for example, that climate change is a hoax.  So, to some extent, a single-minded focus on the Supreme Court as the central source of our present dilemmas—or a potential solution to them—reminds one of the drunk who looks for his missing car keys under the street lamp because the light is better there even though the car was parked many yards away in the dark.

          But let us assume, as is only fair, that the Supreme Court does deserve a share of the blame for where we are today.  For good reason, Professor Price is no admirer of several recent decisions of the Court, including those involving the “major questions” doctrine and, even more, the remarkably obtuse decisions involving the alleged meaning of the Second Amendment in the 21^st century.   It is not so much that he necessarily objects to the results of the cases; rather, he denounces the tone of the opinions.  In particular, he believes that they were written without a sufficient attention to providing what he calls “symmetry,” which in this context means that even the losers should be able to believe that they in fact scored some significant gains, even if only in the future.  An “asymmetric” opinion, on the other hand, would generate only delighted winners and frightened losers.  One might well believe  that we would, overall, be better off if his suggestions for reforming the way the Court thinks and explains itself were adopted.  What, after all, could be the harm? 

          No doubt the other participants in this symposium will address at greater length the assumptions underlying Price’s calls for “symmetry.” Many readers, including myself, are likely to be reminded of Herbert Wechsler’s valiant (and ultimately unpersuasive) attempts to promote “neutral principles” as the grounding for judicial decisions.  There is one important difference, however.  “Symmetry” may differ from “neutrality” inasmuch as Price really appears to wish from judges a sophisticated understanding of the actualities of politics.  They should read more newspapers and even the works of political scientists.  Wechsler, on the other hand, appeared to invite justices to read more philosophy and to wrestle with complicated notions of “neutrality” in constructing a legal regime.   I will let others explore these particular issues. 

Rather, what I want to address in the remainder of my remarks is the question of audience.  Who is supposed to read this book, with what anticipated results?  The book is obviously published by a distinguished university press and written in a standard-form academic style, with plenty of welcome footnotes and “insider” language.  And the price, $39.99 even in paperback (let alone the $110 in hardback!) assures, as a practical matter, that it will get relatively few readers outside the academy.  But assume for the moment that it becomes an academic “best seller,” which, practically speaking, might mean the sale of a couple thousand copies and even assignment to some students in advanced seminars on the Supreme Court today.  So what?  Can anyone seriously believe that our views genuinely matter with regard to the shaping of American politics or, more particularly, the behavior of the Supreme Court, which is, after all, the topic of the book? 

In the probably mythic “good old days,” Felix Frankfurter and other justices might have waited breathlessly for the November issue of the Harvard Law Review and the wisdom imparted by the denizens of the academy chosen to write the Foreword to the review of the previous year’s cases.  For all we know, they might even have paid attention to the de facto “grades” they received from student editors who offered their own commentaries on many of the cases decided by the Court.  Moreover, it was assumed that that essay would also be required reading by the professoriate and perhaps even provoke a genuine debate among constitutional law mavens.  That was certainly true of Wechsler’s essay, even though it was “merely” the Holmes Lecture at the Harvard School, funded by the Holmes Devise that the Justice left to the United States on his death. 

Those days are gone.  As Mark Tushnet suggested some years ago, the Forewords are of diminishing importance, as a practical matter, even if it remains a professional laurel to be asked to write one.  It is not unknown for professors of constitutional law to admit that they have not yet made time to read one or another recent foreword.  This is true as well with regard to every article or book that is being published in “the field.”  All of us (within the legal academy) live in a Darwinian universe where too many manuscripts compete for our scarce attention and consequently remain unread.  As authors ourselves, many of us resonate to David Hume’s fear that his own work would die stillborn at the press.  But, as already suggested, what difference would it make if Professor Price’s were one of the few books that really did survive the Darwinian cut and become both much-discussed and embraced by legal academics? 

Does anyone seriously believe that the Supreme Court, which is, after all, the focus of his critique and addressee regarding the desirability of adopting his theory of “symmetry” (fearful or otherwise), cares about the musing of academics, wherever they might teach and whatever we in the academy might think of the quality of the arguments presented?  Unless members of the Court themselves read the book and, more importantly, agree with the critique and, finally, agree collectively to mend their errant ways, nothing will change.  It is like signing open letters, which some of us have done, to Benjamin Netanyahu or even Vladimir Putin objecting to their truly outrageous behavior and demanding that they mend their ways. 

Legal academics are perhaps becoming ever more critical and alienated from their profession.  The New York Times ran an article several months ago quoting a number of academics about their anguish about their vocation as teachers.  What, after all, does it mean to “teach” material that one has increasingly disrespect for?   The American Bar Association, in its Code of Professional Responsibility, suggests that lawyers are under a duty to promote respect for law and, more particularly, for the judges who are deemed to have a particularly important role in such declarations.  Many of us have increasing doubts about living up to any such responsibilities.  Professor of political science who teach about Congress or the presidency have no duty to cheerlead for “their” institutions.  But the legal academy is different.  We are, after all, preparing not only citizens, but also practitioners who are often described as “officers of the Court” with suitable respect for all elements of the legal order.  But what happens inside the enclosed world of the legal academy doesn’t change things in the broader world outside.  All of the railing against Donald J. Trump by an overwhelmingly liberal academy—where even the “conservatives” have the integrity to be “anti-Trump”—makes no ascertainable difference. 

During Brett Kavanaugh’s hearing before the Senate Judiciary Committee, it was often suggested that he was really speaking to an “audience of one.”  That is, would his patron, Donald J. Trump, be sufficiently impressed by his spirit of aggressive response to his critics to forego withdrawing what in other circumstances might have appeared to be a doomed nomination.  Kavanaugh obviously succeeded splendidly, and he is now Justice Kavanaugh.  So perhaps we should think, with regard to Constitutional Symmetry, of generating an “audience of nine” that would not only read the book but also recognize the error of their misbegotten ways and vow to change their behavior.  Why would anyone seriously credit this as a possibility? 

Moreover, why would one think that those who appoint judges and are tasked with confirming them would sign on to Price’s program if they believed if had genuine teeth?  Donald Trump’s most brilliant political move in his 2016 campaign was to publish a “list” of potential nominees and to assure his MAGA base that he would transform what he freely described as an intellectually and politically corrupt judiciary by drawing judges from the list.  He of course won and, whatever else one might say about him, more than lived up to his promise.  But, of course, his success would have been far more limited had Mitch McConnell not announced, immediately after the death of Antonin Scalia in February 2016, that he would simply refuse even to consider any nominee put forth by President Obama.  For reasons known only to himself, Obama apparently thought McConnell was kidding and chose to nominate Merrick Garland, a fine man and judge who no one outside the beltway had ever heard of or cared about, and McConnell kept his promise.  Hillary Clinton made her own contribution by basically ignoring the judiciary in her campaign, apparently believing that it went without saying that she would make fine appointments.  And then, of course, McConnell, who has publicly proclaimed that his major public service was to help pack the entire federal judiciary with vehement conservatives, took advantage of Ruth Bader Ginsburg’s own death in September 2016, some two months before the election, to ram through the nomination of Amy Coney Barrett.  The current President and Senate majority would roar in disbelief at the suggestion that they should seek out justices who would take care to provide “symmetry” in their opinions.  That is not what the judges are being hired to do.  They are, instead, the agents of a powerful political movement that is trying to solidify its hold on power unto future generations. 

So is it really thinkable that Justices Gorsuch, Kavanaugh, and Barrett, not to mention the even more egregious Clarence Thomas and Samuel Alito, will both read Price’s books and in essence agree that they should mend their ways?  To believe this is to engage in academic fantasy, at all levels, not least because the current majority no doubt believes, altogether sincerely, that they are indeed “oracles of the law.”  I have elsewhere argued that the current majority is a parody of a “Dworkinian” court.  He famously disdained “politics” in favor of the Court as the almost unique “forum of principle.”  And he created the literally fantastic figure of Justice Hercules, who, after careful study of all relevant materials, would issue uniquely correct “right answers” that would pay no attention to their actual consequences or, God forbid, manifest evidence of “compromise.”  I have no doubt at all that most members of the majority all view themselves as Herculean figures, and both Alito and Thomas in particular seem proud of the extent to which they are indifferent to the actual consequences of their views.  Dworkin would be appalled by this, because of his own politics, but I believe that the analogy is justified. 

I have also written elsewhere of a conversation involving Justice Scalia when he visited the University of Texas Law School in 1993 in order to swear in new members of the Texas Supreme Court.  As is typical, the Law School treated the visit as the equivalent of the appearance of royalty, with a suitable luncheon.  I was seated at the table with Scalia and his former University of Chicago colleague Douglas Laycock.  Doug was already, more than thirty years ago, the leading American legal academic on the subject of religious freedom.  He mentioned that he was about to publish a long piece in The Supreme Court Review attacking Scalia’s opinion in Smith v. Oregon, which many analysts viewed as basically reading the Free Exercise Clause out of the Constitution.  Scalia had earlier in the conversation indicated that he, like all of the other justices, was just too busy to keep up on academic literature.  But one might still have expected him to acknowledge his former association, and friendship, with Laycock  by saying something like “I look forward to reading it.”  There was not such comment.  It appeared obvious that becoming a Justice, to Scalia, meant not only that one never had to say “I’m sorry,” but also that one really was under no obligation to acknowledge or read one’s critics.  (He would later say that he made of a point of not reading the Washington Post, which he no doubt regarded as simply a left-wing tract.) 

That is the reality within which we, as legal academics live.  We are paid very well to read and think about truly important issues, not to mention our responsibility to introduce those issues, and their potential resolution, to youngsters who wish to become lawyers.  I very much enjoy the life I’ve been privileged to lead.  But that does not translate into genuine influence, save in extremely exceptional cases.  Gerry Rosenberg wrote a famous book, The Hollow Hope, chastising reformers for believing that they could achieve long-term gains through litigation rather than going through the hard work of political persuasion and creation of enduring alliances among the public at large.  So, alas, might one write a modern  Hollow Hope about books like Price, whatever one thinks of the substance of his argument.  Donald Trump and the sensibility represented by the contemporary majority will not be defeated—or even significantly tempered—by what many of us would think of as persuasive advocacy.  Most of us, including myself, have no real political talents with regard, for example, to organizing a mass movement.  I have, for at least two decades, been a vigorous critic of what I believe to be a perhaps fatally deficient Constitution and advocate for a new constitutional convention.  I am, perhaps, (fairly) regarded as a crank because I’ve in fact persuaded so few people to support a convention even if, increasingly, they are inclined to agree that the Constitution has some deep problems that need fixing.  Price is far too young to be regarded as a crank.  But he should not be surprised if his book gains absolutely no purchase among the very small group of people for whom its argument might be truly relevant.