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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Why Progressives Should Reject "Progressive Historiography" (And Caricatures Thereof)
Legal historian G. Edward White recently asserted that counter Progressive historical work (mainly Lochner revisionism) is becoming so prevalent “that one might say it is poised to become a new orthodoxy.” He’s right that the long dominant Progressive historical account is now under assault. My Beyond the Formalist-Realist Divide takes aim at a central component of it. But it is important to emphasize that one can attack Progressive historiography without being anti-progressive.
According to White,
Progressive legal and constitutional historiography began as early as the 1920s, and can in some respects be seen as a byproduct of sociological jurisprudence and Realism, which came to be the dominant jurisprudential perspectives of the 1930s and beyond….[I]ts practitioners held shared starting assumptions. American history was a clash of interests and classes. Judging was an instrumental, ideological exercise. Behavioralist analysis was the key to understanding judging. Law was a “mirror of society”: legal doctrine was a purposive (or unconscious) response to social conditions filtered through the lenses of political ideology.
Now comes the counter-Progressive position:
Counter-Progressive work assumes that describing American society as a shifting clash of classes and interests is simplistic and potentially pejorative, imposing anachronistic post-New Deal categories on past epochs. It assumes that judging is more than what the judge ate for breakfast or an imposition of the judge’s instinctive and class biases on public policy. It assumes that judges are importantly constrained by legal doctrine, so that the relationship between law and current political ideology is delicate and complex. And it assumes that law, far from being simply a “mirror of society,” is at any moment in time, in a dialectical relationship with American culture at large, so that law is both constitutive and reflective of its cultural setting.
This is obviously a loaded contrast—in which Progressive views appear narrow and extremist, while Counter-Progressive views seen balanced and respectful of law. Needless to say, conservatives love this contrast, which saddles contemporary progressives with the view that judging is all about politics (Timothy Sandefur does it again here; I don’t know White’s political views, and I admire his work, but the contrast he makes is false, as noted here.). This is the standard script for judicial confirmation hearings which allows conservatives to claim to be the champions of judicial fidelity to law, immediately putting progressives on the defensive.
Until this narrative changes, with fundamentally new lines drawn, progressives will be boxed in to a position on judging that is impossible to defend. Uprooting Progressive historiography (which is wrong in important respects), and challenging caricatures of progressive views, are necessary preludes to this change.
Reductionism is bad, of course; but if is not true that "judicial decisions reveal the political biases of judges [and] their conservative ideologies" (White, Response at page 1147, then why do conservatives try so hard to put conservatives on the courts? Do not political biases explain - at least in part -- decisions like Bush v Gore?
The problem with saying that judges are constrained by legal doctrine is that it often isn't true. How about Bush v. Gore and Citizens United as examples?
While lower court judges are usually constrained by legal doctrine, for Supreme Court Justices which are the usual subject of historical accounts, this isn't the case.
I am not saying that major improvements to progressive accounts of history are not possible. But I think your argument that politics is not often s decisive driver of judicial decisions is simply wrong.
Exhibit A: Marbury v. Madison Exhibit B: Dred Scott Exhibit C: Plessy v. Ferguson