Mark Tushnet
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Several generations of law students and their teachers grew
up with federal courts dominated by conservatives. Not surprisingly, they found
themselves wandering in the wilderness, looking for any sign of hope. The
result: Defensive-crouch constitutionalism, with every liberal position
asserted nervously, its proponents looking over their shoulders for retaliation
by conservatives (in its elevated forms, fear of a backlash against
aggressively liberal positions).
It’s time to stop. Right now more than half of the judges
sitting on the courts of appeals were appointed by Democratic presidents, and –
though I wasn’t able to locate up-to-date numbers – the same appears to be true
of the district courts. And, those judges no longer have to be worried about
reversal by the Supreme Court if they take aggressively liberal positions.
(They might be reversed, but now there’s no guarantee.) And, we shouldn’t focus
on the Court’s docket this year, which was shaped by conservative justices
thinking that they could count to five on a bunch of cases. The docket will
look quite different if they can’t see that path to five votes when they decide
which cases to review.
What would abandoning defensive-crouch liberalism mean?
(I’ve blogged about some of these points before.)
1
A
jurisprudence of “wrong the day it was decided.” Liberals should be
compiling lists of cases to be overruled at the first opportunity on the ground
that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales
for affirmative action that really matter), Buckley
v. Valeo (for ruling out the possibility that legislatures could develop
reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and
Shelby County. (I thought about
including Washington v. Davis, but my
third agenda item should be enough to deal with it.) Others will have their own
candidates. What matters is that overruling key cases also means that a rather
large body of doctrine will have to be built from the ground up. Thinking about
what that doctrine should look like is important – more important than trying
to maneuver to liberal goals through the narrow paths the bad precedents seem
to leave open.
2
The
culture wars are over; they lost, we won. Remember, they were the ones who
characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry
for culture wars, which describes conservative activists, not liberals, using
the term.) And they had opportunities to reach a cease fire, but rejected them
in favor of a scorched earth policy. The earth that was scorched, though, was
their own. (No conservatives demonstrated any interest in trading off
recognition of LGBT rights for “religious liberty” protections. Only now that
they’ve lost the battle over LGBT rights, have they made those protections
central – seeing them, I suppose, as a new front in the culture wars. But,
again, they’ve already lost the war.). For liberals, the question now is how to
deal with the losers in the culture wars. That’s mostly a question of tactics.
My own judgment is that taking a hard line (“You lost, live with it”) is better
than trying to accommodate the losers, who – remember – defended, and are
defending, positions that liberals regard as having no normative pull at all.
Trying to be nice to the losers didn’t work well after the Civil War, nor after
Brown. (And taking a hard line seemed
to work reasonably well in Germany and Japan after 1945.) I should note that LGBT
activists in particular seem to have settled on the hard-line approach, while
some liberal academics defend more accommodating approaches. When specific
battles in the culture wars were being fought, it might have made sense to try
to be accommodating after a local victory, because other related fights were
going on, and a hard line might have stiffened the opposition in those fights. But the
war’s over, and we won.
3
Aggressively
exploit the ambiguities and loopholes in unfavorable precedents that aren’t
worth overruling. Take Wal-Mart:
Confine it to its unusual facts (a huge nation-wide class, a questionable
theory of liability), and don’t treat it as having any generative power in
other cases. Or Washington v. Davis,
which said that disparate racial impact wasn’t enough to trigger strict
scrutiny, but that sometimes such an impact could support an inference of
impermissible motive: Play the “sometimes” for all its worth. Defensive-crouch
liberalism was afraid to be aggressive about the precedents because of a fear
of reversal by higher courts. That fear can now be put aside. (Judge
Reinhardt’s essay on habeas corpus, in the Michigan Law Review, is an exemplary
discussion of how liberals can exploit ambiguities and loopholes.)
4
Related: Remember
that doctrine is a way to empower our allies and weaken theirs.
Conservative decisions on class-action arbitration should be understood as part
of a long-term project of defunding the left. Much of the current Court’s
voting rights jurisprudence strengthens Republican efforts selectively to
shrink the electorate. Similarly with campaign finance jurisprudence. I don’t
mean that these doctrines are consciously designed by the justices to have
those effects, but outsiders – academics and activists – should understand that
that’s what they do. (Nor do I mean that the efforts always succeed – see Evenwel for a failure.)
5
Our models
are Justices William Brennan and Thurgood Marshall, not David Souter or John
Marshall Harlan. With some ambivalence I’d add Justice Ruth Bader Ginsburg
to the list, the reluctance arising from the fact that her work as a judge has
been shaped more than it should be by defensive crouch constitutionalism,
particular in her sensitivity to the possibility of backlash. Still, when the
votes are there, she’s been much like Brennan and Marshall (personality aside).
Famously, Brennan said that he’d been around long enough to know what it was
like to win, and what it was like to lose, implying that “this too shall pass,”
though it’s taken a long time. (Or, channeling Sophie Tucker [or Mae West, or
Beatrice Kaufman], he ‘d been a winner and a loser, and winning is better.)
6
Finally
(trigger/crudeness alert), fuck Anthony
Kennedy. I don’t mean that liberals should treat him with disrespect. But
defensive-crouch liberalism meant not only trying to figure out arguments that
would get Kennedy’s apparently crucial vote (not so crucial any more), but also
trying to milk his opinions – and more generally, obviously conservative
opinions – for doctrines that might be awkwardly pressed into the service of
liberal goals. (Think here of how liberal constitutional scholars treated Kennedy’s
[truly silly] concurring opinion in Parents
Involved [“You can deal with the consequences of segregated housing
patterns by locating new school construction carefully” – in districts that are
closing rather than building schools], or his “views” about affirmative action,
or recasting the Court’s federalism cases as actually good for liberals.)
There’s a lot of liberal constitutional scholarship taking Anthony Kennedy’s
“thought” and other conservative opinions as a guide to potentially liberal
outcomes if only the cases are massaged properly. Stop it. (See agenda items 1
and 3 for how to treat those opinions.)
Of course all bets are off if Donald Trump becomes
President. But if he does, constitutional doctrine is going to be the least of
our worries.