Saturday, January 21, 2023

A Constitutional Blog in Constitutional Time

Guest Blogger

For the Balkinization 20th Anniversary Symposium

David Pozen

Balkinization isn’t what it used to be. 

When I was a law student, from 2004 to 2007, I thought Balkinization was riveting stuff. I visited the site regularly. I read every post. I admired the authors. I felt like they were my teachers, as well as models of engaged scholars, and their time-stamped entries an important supplement to my formal legal education. 

Fifteen-odd years later, it’s hard to imagine my own students feeling that way. The vast majority of them say they have never heard of Balkinization. The vast majority of posts, Blogger tells me, are perused by fewer than 200 people; many have “view counts” in the double digits. I don’t have directly comparable data from the mid-aughts, but it appears the readership was a good deal larger then. Paul Caron reported in October 2008 that over the previous twelve months, Balkinization had received 1,132,377 visitors and 1,962,322 page views. 

Qualitatively, too, the blog loomed larger. It was routinely characterized as “influential.” “‘Balkinization,’” Lyle Denniston wrote in 2006, “is often visited, and deservedly so.” The Weekly Standard described Balkinization as “much-read.” Richard Posner sang its praises. Professional journalists and congressional staffers looked to it for legal guidance. The blog’s arguments, the Washington Post observed on the day of President Obama’s first inauguration, are “often cited by members of the Obama team.” 

The contributors to Balkinization are as smart as ever. The subjects of discussion are as vital as ever. And the eponymous Jack Balkin has only become more renowned over the past two decades. Yet whereas the blog helped shape the constitutional conversation in the mid-2000s, at least in certain elite circles, it now seems to play a more peripheral role. What explains the apparent decline in influence, and what might this suggest about the state of American constitutionalism?

* * * 

Some of the likely factors driving this decline have more to do with changes in the digital media landscape than with changes in the constitutional landscape. For instance, Twitter and podcasts may have partially displaced blogs as venues for timely legal analysis (along with academic back-scratching and self-promotion) or redistributed readership to sites with writers who are popular on other platforms. Blogs of all sorts had already begun to lose ground by Balkinization’s tenth anniversary. 

Within the legal blogosphere, a growing number of high-quality outlets now compete with Balkinization for market share. Some of these, such as Lawfare and Just Security, were founded relatively recently. Others, such as SCOTUSblog, Volokh Conspiracy, and Election Law Blog, were founded around the same time but have become substantially slicker since 2003. Innovate or die, the business consultants say, and Balkinization hasn’t innovated much. Same vertical layout. Same inconsistent fonts. Same slightly shambolic—endearingly shambolic!—look and feel. 

Other factors that may be contributing to Balkinization’s marginalization, by contrast, are bound up with significant shifts in constitutional law and politics. Balkinization came of age during the “global war on terror.” For many in the legal profession, the GWOT was difficult to comprehend not only because of its extraordinary scope, scale, and violence but also because of its extraordinary reliance on secret presidential power. How could the Bush administration believe that practices such as waterboarding, sleep deprivation, extraordinary rendition, warrantless wiretapping, and indefinite detention without charge were lawful? All of the relevant memos were classified. FOIA requests yielded paltry returns. Balkinization contributors, led by Marty Lederman, pioneered a genre of constitutional detective criticism, first piecing together the administration’s Article II theories and then dissecting their flaws. By performing these dual functions, the blog developed into an epistemic authority as well as a normative touchstone for legal liberals—an expert forum through which they could establish, in real time, shared understandings, narratives, and positions about the biggest threats to the constitutional order. 

Flash forward to the Trump administration, and Balkinization was no longer capable of underwriting the “resistance” in a similar manner. Trump’s legal machinations were not especially subtle or secretive. He preferred to flaunt his violations of Beltway norms. His brand of populist ethnonationalism, moreover, didn’t rely on esoteric Article II theories or really on any coherent constitutional vision. And even before Trump took office, the financial crises and drone strikes of the Obama years had led many on the left to question law’s capacity to tame neoliberalism or the national security state. 

There was still a need for prompt legal criticism of the president’s behaviors—there always is—and constitutional scholars supplied it in droves. But we could neither explain Trump’s rise nor figure out how to combat Trumpism in any systematic sense. Unlike with the GWOT, Balkinization’s contributors had no special insight into the drivers or design of MAGA world. 

Perhaps the least remembered passage in Mark Tushnet’s notorious May 2016 post on defensive-crouch constitutionalism was its most prescient: “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.” A constitutional blog like Balkinization is almost bound to lose salience in an era when constitutional doctrine is the least of its audience’s worries. When the eco-apocalypse comes, I predict the blog’s readership will decline further. 

Trump’s judicial appointments also meant that the Supreme Court, and the lawyers who bring cases before the Court, would no longer be a plausible part of the blog’s imagined audience or praxis. The blogging format, Balkin noted in 2006, drives law professors away from “high theory” and “toward doctrinal analysis that lawyers and judges can use.” During the Bush and Obama administrations, it was at least conceivable that a compelling piece of analysis on Balkinization might trickle its way up through the mainstream media, the advocacy community, and the appellate bar and have some effect on a justice or clerk drafting a majority opinion at One First Street. 

That model of intellectual influence is not so much romantic as risible these days. The Court’s controlling conservative bloc has no appetite for arguments promoted by left-liberal academic elites, even when framed in ostensibly congenial originalist terms. They cite Baude, not Balkin. One could imagine Justice Garland reading Balkinization with interest. One cannot imagine Justice Gorsuch doing the same.

Partly on account of these same developments, the center of gravity on the academic legal left has moved away from blogs like Balkinization and organizations like the American Constitution Society in the direction of the Law and Political Economy Project and affiliated groups. Many of us who write on Balkinization are LPE-adjacent, in that we share the project’s social democratic politics and support its scholarly aims. Yet if constitutional law has traditionally been at the center of public-facing legal debate, it is decentered in the LPE discourse. Subjects like antitrust, financial regulation, labor law, and criminal law receive more attention. Energy and imagination have likewise been redirected to legislatures, agencies, police departments, and other nonjudicial bodies. 

Balkinization and LPE are small outfits. But each serves as a tribune and mirror for core constituencies in the progressive legal firmament. The turn away from Balkinization toward LPE marks not only a series of topical and institutional shifts within that firmament, it seems to me, but also a diminished faith in the ideal of public legal reason, a diminished focus on “good lawyering,” and possibly a decisive generational break with post–Warren Court liberal constitutionalism. 

Balkinization’s contributors are proficient in the normal science of constitutional analysis. To a degree that now seems “puzzling,” if not scandalous, that normal science has had almost nothing to say for decades about the operations of capitalism, much less about runaway inequality, election denialism, environmental degradation, and other existential threats to the republic. It’s not just conservative judges who are less interested at this point in the kinds of arguments one might find on this blog. Many in the Democratic coalition are less interested as well. Bernie Sanders, notably, almost never mentioned the Constitution in his presidential campaigns. 

* * * 

I have provided a very cursory sketch of some very large issues, and there have surely been lots of other developments since 2003 that have altered Balkinization’s readership and impact. The “legal complex” in which the blog participates is, well, complex. My basic claim is that a range of environmental factors, or success conditions, help determine a constitutional law blog’s influence in any given period; that the GWOT supplied a favorable context in which to launch a blog like this one; and that the contemporary context is significantly less favorable, for reasons both dismaying (such as Trumpism and the right-wing capture of the Court) and encouraging (such as the resurgence of the democratic left and the emergence of LPE). 

Does this mean you should stop reading the blog? I hope not. The overall quality of analysis remains high. The overarching goal of marrying moral commitment to legal craft remains intact. And while the Balkinization aesthetic may be stuck in the past, Balkin has found ways to bring increasingly diverse voices and topics into the familiar format. Influential or not, I am grateful to be associated with an enterprise that inspired me as a student and that enlightens me still. 

David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School. He is currently working on a book about The Constitution of the War on Drugs. You can reach him by email at <>.

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