Lessig, "translation," and institutional legitimacy

Larry Lessig is clearly one of the most interesting and imaginative scholars within the legal academy, and he has written a book that fully vindicates the enthusiastic blurbs it receives (from myself, as well as others).  Richard Fallon describes the book as “a marvel of learning, insight, and edifying provocation.”  He is right in every way. 

Pam Brandwein and Jack Balkin have offered excellent summaries of Lessig’s basic argument in their postings in this symposium.  His notion of “fidelity” requires attentiveness to the “meaning” of the Constitution, and the presumption is that judges (and others) should be faithful to that meaning.  But he is also attentive to institutional (and political) “constraint” that may lead the Court on occasion to avoid fidelity in order to protect itself by remaining within what is viewed (who actually does the viewing is, of course, a key question, as Jack elaborates) as "public opinion" (which Barry Friedman emphasized in his relatively recent book) or, more likely, the wishes of dominant political elites.  He agrees with what is near conventional wisdom, for example, that Marbury represents far more of a prudential decision about the Court’s actual capacity to work its will against an oppositional Jeffersonian Administration than a truly convincing interpretation of Section 13 of the Judiciary Act of 1789 and/or Article III with regard to Congress’s power to add to the stipulated original jurisdiction of the Supreme Court.  

My own mentor, Robert McCloskey, many years ago argued that all major Supreme Court decisions were ultimately evaluated against the quite separate categories first of what Lessig calls legal “fidelity,” i.e., the persuasiveness of the strictly legal arguments that are offered; second, the institutional and political contexts within which the Court is acting and its own recognition that it is ill-advised to be either too innovative or, indeed, static in its legal interpretations if other key actors, including whatever one defines as “public opinion,” would take significant umbrage at the Court’s decision; and, finally, one’s assessment of the value consequences of the decision.  Justice Thomas only this past week, for example, indicated that the Court should not be hesitant to overrule its own precedents should they be manifestly unjust.

I realize that I basically agree with the McCloskeyan approach and, therefore, am inclined to agree with much of Lessig’s argument insofar as it is similar.  Why wouldn’t one prefer legal fidelity if there were no side costs?  The problem, obviously, is defining exactly what legal fidelity entails, to which I will turn presently, but there is a good reason that almost no one argues in public for the notion that anyone taking an oath of loyalty to the Constitution should be indifferent to ascertaining its meaning and then, if feasible, conforming with that meaning.  Problems arise only when other competing values emerge.  As I have argued elsewhere, it is one thing to repeat the injunction “let justice be done though the heavens fall,” even if one doubts that many people are really willing to adhere to the precept.  But I regard it as simply foolish to say “let the Constitution be adhered to though the heavens fall.”  That is to adopt a willfully blind form of legal positivism that simply ignores any questions either of political prudence or, at least as importantly, morality.
 

Even if Lessig and McCloskey are quite similar with regard to their overall evaluative approach, there is no doubt that Fidelity and Constraint is a far more carefully worked out elaboration of the argument, especially with regard to often deep analysis of given cases.  McCloskey’s genius was an ability to write, in The American Supreme Court (1960) a remarkably concise overview of what was then the roughly 170 year history of the Court in relation to the wider American political order.  With the exception of Marbury, almost no case was considered in any depth.  As already suggested, that is simply not the case here.  Fidelity and Constraint will undoubtedly be the subject of independent seminar devoted to looking at key cases and broader constitutional developments through the Lessigian lens and determining the strengths or weaknesses of his argument.  (Brandwein offers some valuable suggestions as to what a future research program might look like.)

I want to devote the remainder of my remarks to two specific issues.  The first, as already suggested, relates to how we assess legal fidelity and, more, particularly, the utility of Lessig’s key metaphor of “translation.”  The second is quite different, drawn from what I see as the almost elegiac tone  of his conclusion with regard to the ability of the Court (or, perhaps, the broader constitutional project itself) to survive our present political discontents, often encapsulated by the term “polarization.”

As to “translation,” I will “incorporate by reference” an essay that I wrote over twenty years ago, in a symposium in the Fordham Law Review that focused on some earlier work by Lessig setting out some of the ideas explored at much greater length in this new book.  (As he himself notes, he in effect put aside the work he had been doing in in order to delve into the world of the internet, including copyright and the implications of the new social media, where he became one of the ranking academics and public intellectuals.  Almost inevitably, as elaborated in Jack Balkin’s extensive ruminations on the book, one is tempted to compare the contexts of the late 1990s and the present with regard to the Court being able to play the crucial role that Lessig assigns it.  I will return to this comparison at the conclusion of my own remarks.)  In that essay, I focused on what I consider to be the central paradox of “translations,” captured, indeed, in my title, “Translation:  Who Needs It?”  That is, translations are most necessary to those who, like myself, are monolingual and therefore simply are unable to read any works written in a “foreign language” unless they are in fact translated.  

I cannot read a word of Homer in the original Greek, and, obviously, I could set out an almost literally infinite set of further examples drawn from all over the world and the literally hundreds of languages in which important articles or books are available to those who can read them.  Even assuming that books have been translated and thus available, in a way that untranslated ones simply are not to those like myself, the next question is evaluating the quality of the translation itself. 

As a long-time participant in extraordinarily valuable conferences at the Shalom Hartman Institute in Jerusalem that focused, among other things, on Talmudic interpretation, I quickly became familiar with an almost standard trope by which the deeply educated Hebrew speakers were prone to be critical, if not denunciatory, of one or another translations that non-Hebrew speakers had to read. Of course, the translators themselves were presumably skilled in Hebrew, and what was being illustrated was the obvious point that even skilled native-speakers did not necessarily agree on the meaning of the language.  

Hebrew presents special problems inasmuch as it does not include vowels in its classical written form, but similar problems quickly emerge with any and all exercises trying to convey the meaning of the words on a page.  I was dismayed, for example, to learn that Remembrance of Things Past is now more often translated as In Search of Lost Times, which, to put it mildly, conveys, at least to English speakers, quite different meanings.   Similarly, anyone looking for translated versions of Homer or Dante is instantly met with what might be regarded, on the one hand, as an embarrassment of riches, given the numbers available, or as a stress-laden requirement to pick out for oneself the “best translation” even in the absence of his or her own capacity to read the language being translated.

With regard to “translating” the 18^th Century Constitution into a truly usable document in the 21^st century, it is essential to Lessig’s argument that we can agree on what that Constitution might require in what Talmudic hermeneuticists would call pilpul, i.e., its unadorned textual meaning—and one should not underrate the importance to Lessig, who was, after all, a law clerk for Antonin Scalia, of text and textual fidelity—prior to engaging in certain second-order hermeneutic movements away from pilpul and toward a more sophisticated “translation” that is sensitive to context.  One of the remarkable things about studying Talmud, of course, is experiencing the sometimes astonishing deviations from what appears to be “plain meaning” in order to “neutralize” (a word much used at the Hartman Institute) the unacceptable implications of that meaning. 

In some ways, I am simply asking whether the use of the term “translation” really adds much, if anything, to the more standard term “interpretation.”  In both cases, we might be contrasting pilpul, or even a version of “original public meaning,” with necessarily modified meanings constructed to deal with decidedly new contexts in which it would be ill-advised, at the very least, to stick with meanings that, by definition, presupposed a quite different overall context from the one we in fact inhabit today.  

This point obviously does not affect at all the basics of Lessig’s argument.  In substantial ways, he can be viewed as defending a view of the “living Constitution,” as most memorably set out in Chief Justice Hughes’s majority opinion in Home Building & Loan Association v. Blaisdell (a case, incidentally, surprisingly omitted from Lessig’s discussion).  Hughes was memorably, and ably, answered by a dissenting opinion written by Justice Sutherland in which he embraced what Scalia might have gladly embraced as the “dead Constitution.”  Sutherland emphasized the ostensibly “clear text” of the Contract Clause and the historical materials indicating that the elite who dominated the Philadelphia Convention were certainly appalled by the prospect of debtor relief as manifested, for example, in Rhode Island, and wished to preclude any further episodes by stating that “no state shall pass any law…. Impairing the obligation of contracts.”  (My own view is that Blaisdell is probably the best set of matched opinions in the canon.)  

Hughes most definitely did not defend the right of judges to impose their own or social views, but he did say that

It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If, by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning -- "We must never forget that it is a constitution we are expounding" (McCulloch v. Maryland, 4 Wheat. 316, 407) -- "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Id., p. 415. When we are dealing with the words of the Constitution, said this Court in Missouri v. Holland, 252 U.S. 416, 433, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.

Nor is it helpful to attempt to draw a fine distinction between the intended meaning of the words of the Constitution  and their intended application. When we consider the contract clause and the decisions which have expounded it in harmony with the essential reserved power of the States to protect the security of their peoples, we find no warrant for the conclusion that the clause has been warped by these decisions from its proper significance, or that the founders of our Government would have interpreted the clause differently had they had occasion to assume that responsibility in the conditions of the later day. The vast body of law which has been developed was unknown to the fathers, but it is believed to have preserved the essential content and the spirit of the Constitution. With a growing recognition of public needs and the relation of individual right to public security, the court has sought to prevent the perversion of the clause through its use as an instrument to throttle the capacity of the States to protect their fundamental interests. This development is a growth from the seeds which the fathers planted….

               

The divide between Hughes's and Sutherland's opinions--the latter ends with the memorable comment that if a Constitution is not to be followed when it "pinches" as well as when it is comfortable, then there is really no point in professing the aim of limiting government)-- remains central to much contemporary debate about constitutional interpretation (or, if you wish, translation).  Modern conservatives continue to despise Blaisdell.  A book published several years ago by the Cato Institute elaborating the then-“dirty dozen” of worst cases in our history led off, as I recall, with Blaisdell.  Not surprisingly, that is not my own view, nor do I believe it is Lessig’s.  I do wonder, though, if the current majority of the United States Supreme Court would decide Blaisdell the same way were it a case of first impression today.

However, as already noted, the book is not simply an abstract guide to constitutional interpretation.  It is also a deep meditation on the undoubted phenomena of significant changes in economic realities (such as the development of a national and now international marketplace) and, just as importantly, social values (or what Lessig calls “meanings” regarding, for example, the meaning of “equality” relative to various minorities at different times in our complex history) and the degree to which our overall constitutional order looks to federal judges, especially, to offer authoritative insight into the reality of these changes and then to modify existing constitutional doctrines accordingly.  Jack, especially, addresses this aspect of Lessig’s argument.  Suffice it to say that I agree that there is much that links Lessig’s argument with the great “legal process” tradition identified with Henry Hart and Albert Sacks, especially inasmuch as that tradition relied on a process of thoughtful deliberation among legal elites to produce a consensus that could and would be accepted by society in general.  

One might think in this context of the plaintive plurality opinion in the Casey case on abortion, in which the three justices who signed it—Kennedy, Souter, and O’Connor—called on the country to accept the Court’s opinion in Roe (as in fact modified in Casey) as a definitive resolution.  (This is obviously in line with the earlier proclamation by the Court in Cooper v. Aaron, only in 1958, that it was the “ultimate interpreter” of the Constitution, which by definition required the acquiescence of all other purported such interpreters.)  One might, incidentally, place Mccluskey's own view of the Court within an intellectual framework where the Court was expected to be able to "read," as it were, public opinion or elite preferences and discern what political scientists would call "single-peaked preferences" that basically established the guidelines within which Courts might be free to act.  They could, for example, move a half-standard-deviation away from the peak, even as moving further, whether to push the zeitgeist along much faster than it was in fact moving or, contrarily, to try to stem what was becoming the clear direction of American constitutional development outside the courts.

But what is necessary for this vision of the Court “to work,” as an empirical matter?  The answer, Lessig seems to suggest, is widespread perception by the public that the judges are trained (and wise?) professionals whose judgments can generally be trusted, even if, as with all humans, they will on occasion make mistakes.  What this “translates” into, so to speak, is general acceptance of “the essentially nonpartisan character” of the Court, which he appears to believe has been more true than not “of its past” (p. 458).  (Obviously, many historians might dispute this description.)  What this requires, perhaps, is a linked reality of “[t]he justices [as] anonymous, or relatively so.  They do their work carefully and personally” (id.)  He well recognizes, even if he does not elaborate, that this description is very far from our present reality.  Almost no one believes that the Court is close to “nonpartisan.”  Any possibly remaining doubt on this point was surely eliminated by Mitch McConnell’s successful theft of a Supreme Court seat for the Republican Party (which also, of course, required eliminating the filibuster for Supreme Court nominations that removes any ability of the minority party to play a genuine role in confirming justices).  Nor do this recent decisions by five-justice conservative Republicans majorities in the partisan-gerrymandering and census cases offer the slightest reasons to embrace a "non-partisan" description of the law simply working itself pure, as suggested by the Legal Process tradition.
 
Donald Trump’s most brilliant political move in 2016 was to disclose the “list” of his prospective appointees, which was prepared, of course, by the hyper-partisan Leonard Leo in behalf of the Federalist Society and Heritage Foundation.  I anticipate that Democratic candidates, who have a remarkable willingness simply to ignore the judiciary in their campaigns (and, in some senses, even while holding office, as with President Obama), will be pressed to reveal their own “lists” regarding future appointments to the Court and, all importantly, whether they will support an expansion of the federal judiciary in order to counter the seizure of power by McConnell and his minions in the senate.  Perhaps Joe Biden will refuse, declaring that he will use his proclivity for bi-partisanship to work well with Republicans when appointing judges.  Should that be the case, though, I suspect that he will be rightly castigated for simply misunderstanding the modern Republican Party and the consequent necessity for Democrats to pay as much attention to judicial appointments as do Republicans. There is no evidence, for example, that Biden was able to dissuade Mitch McConnell even for ten seconds from his disdain from giving Merrick Gerland even the courtesy of a hearing.

Moreover, it is a reality that modern justices are scarcely “anonymous.”  I was astonished several  years ago to be told by a member of the German constitutional court that there had been no biographies of any members of that extremely important and interesting body.  They serve for ten years and then return to their ordinary lives, often as distinguished academics like Dieter Grimm.  Here, of course, we now have what can only be described as a cult surrounding Ruth Bader Ginsburg,.  She has been the subject of several biographies, a documentary, and a film focusing on her years at the Harvard Law School and then as a lawyer helping to construct the scaffolding of arguments, for the American Civil Liberties Union, that helped to persuade an all-male and decidedly patriarchal Supreme Court—William J. Brennan, for example, had to be dragged kicking and screaming to hire a female law clerk—to interpret the Fourteenth Amendment and, just as importantly, the Civil Rights Act of 1964 in ways that benefitted women (though part of Ginsburg’s brilliance was to frame several of these cases around male plaintiffs who could legitimately complain about gender discrimination).  But Antonin Scalia spent most of his career also creating a far more influential cult of personality by devoting his considerable energies to encouraging the formation of the Federalist Society and the creation of a genuine institutional and social home for legal conservatives who had, with some reason, felt isolated at many of the country’s leading law schools.  Louis Brownlow wrote many years ago that an effective federal bureaucracy depended on a “passion for anonymity” on the part of selfless civil servants. One might suggest that the only recent justice with such a “passion” was David Souter, who, not at all coincidentally, left the Court after serving what today we might describe as a “mere” twenty years when he was “only” 70.

Moreover, it Is unclear to what extent we can describe the justices as doing their work “personally” and, perhaps, even “carefully.”  It is hard to believe that we as a society really benefit from each Justice’s having four clerks.  Today’s limited docket of the Supreme Court means that each justice will have the task of preparing approximately eight majority opinions during the Term, as well as however many concurrences or dissents he or she might wish to issue.  Obviously justices have many other tasks besides considering cases and writing opinions, but perhaps they should spend less time, for example, judging moot court competitions at law schools (where they are inevitably fawned over by students—and their teachers—who treat Supreme Court justices as celebrities) and, instead, writing their own opinions.  At least as important in understanding modern legal culture,, though, is the willingness of justices themselves, let alone outside commentators, to castigate their colleagues in a way that is designed to deprive their opinions of any genuine respect. 

One of Justice Scalia’s primary activities on the Court was to engage in what can only be called “trash talk” that ridiculed his colleagues.  As he got older and more ornery, this became ever more prevalent.  So in Obergefell he simply accused his five colleagues in the majority as not “behaving like judges.”  If one takes this seriously, they should be impeached.  Chief Justice Roberts was no better, concluding his own Obergefell dissent by writing that the majority’s decision had “nothing to do with the Constitution.”  This is a bare-faced lie, at least inasmuch as one can relatively easy link the decision in that case with the earlier decision of the Court in Loving v Virginia striking down that state’s ban on inter-racial marriage.  I do not deny that one can distinguish the two or that a reasonable person could reject the majority’s decision.  Writing for the Sixth Circuit, Judge Jeffrey Sutton wrote a powerful opinion, based on classic imperatives of "judicial restraint" upholding Ohio’s ban on same-sex marriage.  The fact that I disagreed with it does not warrant my insulting him in the ways that Scalia (for whom Sutton clerked) regularly did his own colleagues.

Gerard Magliocca writes that “[w]hen lawyers look at the Supreme Court opinion, they are usually able to evaluate the quality of the work.  There is a consensus about the relevant source and methods of interpretation, most of the time.  To the extent that this is not the case, there is an internal logic to a method that lets us test the soundness of the conclusion.”  I find it hard to recognize this as a description of our current reality.  Legal academics, to take the “interpretive community” I am most familiar with, seem increasingly non-consensual about “relevant source[s] and methods of interpretation,” and we are certainly capable of exhibiting acrimony with regard to opinions, whether by justices or our colleagues, that we find literally incredible. The key word here is "consensus."  As already suggested, Mccluskey, writing in the 1950s, was certainly influenced by the "consensus school" of American history.  That approach began coming under relentless attack in the 1960s--McCloskey died in 1969--and is in shambles today.  Consequently, any theories of judicial review, and the nature of public and professional response to decisions of the Court, whatever their ostensible basis, must take into account the fact that, as Daniel Rodgers titled his 2003 book, we live in an "Age of Fracture."  (This is also a powerful implicit theme of Ken Kersch's vital book on conservative constitutionalism.)

Lessig emphasizes throughout his book the importance of “charity in interpretation,” by which we assume the best of our adversaries instead of denouncing them as unprincipled or incompetent.  There is obviously much that is attractive in this emphasis.  A society organized around what has been called a “hermeneutics of suspicion” cannot long endure.  Whether or not Auden was correct in saying “we must love one another or die,” it is surely the case, as Steve Griffin has emphasized in his own important work, that “we must trust one another” if we wish to maintain a functioning society.  So it is no small matter to reject Lessig’s vision of a world of “fidelity and constraint.”  The alternative may be not only a much greater embrace of Legal Realism than Lessig is comfortable with, but also, and more ominously, a further descent into polarization, mistrust, and dysfunctionality.