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