The Procedural Turn’s Faith in Elite Judgment

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Aziz Rana 

Kunal Parker’s The Turn to Process is a wonderful reconstruction of intellectual life in the United States over the twentieth century.  It explores how scholars across fields of law, political science, and economics confronted the modernist crisis of meaning that shaped Euro-American societies.  In particular, the late 1800s and early 1900s saw a breakdown among intellectual and political classes in faith in the underlying foundations of collective life—judgments about the common good, moral certainty, and shared substantive truths.  In this context, scholars increasingly shifted toward an embrace of method as a way both of making sense of social experience and of imagining tools for restitching the social fabric.  As a result, they also re-grounded the legitimacy of their own fields—whether law, political science, or economics—on procedural techniques.  These techniques allowed the scholar to claim an expertise relevant for the ordering of social life regardless of the fracturing of faith in substantive truths.

            Among many achievements, Parker’s book is an incisive and essential history of how today’s fields consolidated around their contemporary focus on method.  In this way it is not only a striking and synthetic interpretation of the mid-twentieth century intellectual world.  It is also a powerful account of the extent to which even as the driving methods of that era—for instance, the legal process school in law—collapsed, greater space for plural methods nonetheless continues to go hand in hand with the dominance of method itself as the basic source of scholarly authority.  Parker implies that for all the criticism some legal and political scholars may have of the scientistic elements in “law and economics” these are effectively family disputes.  Whether you are a historian or social scientist, one today is nonetheless still largely encased within the developments that ushered American intellectual production toward an embrace of process as its guiding light.  All of this underscores how Parker has created a lasting and generative scholarly contribution to be grappled with across the disciplinary divides.

            For the rest of this essay, I would like to explore a related—and incredibly illuminating claim—in the book.  Kunal notes an inherent instability from the start with the focus on method as a substitute for the traditional judgments of truth, morality, and God.  Ultimately, the turn to process was rooted at least partly in a belief that method could generate, in Parker’s words, “clarity and precision.”  But the reality was that these methods all had an irreducible degree of “vagueness, indistinction, and imprecision” (294).  This inevitably shifted the focus on process back onto an implicit engagement with the individual exercising the particular range of tools, and their capacity to wrestle with what Parker describes as “moods” and “feelings.”  Emblematically, he explores Alexander Bickel’s version of legal process, underscoring the link in Bickel’s thinking about judicial decision-making between precision and imprecision, procedural clarity and unavoidable and intangible judgment.

            This speaks to the limits of process alone as a grounding for the legitimacy of the expertise of the legal scholar or, even more critically, the legal decision-maker.  Indeed, reflecting on Bickel highlights a telling feature of the legal process school, and perhaps the mid-twentieth century intellectual consensus more generally: so much of the faith in process was at root faith in the social class of elites likely to operate the tools—inside and outside of the academy.  In fact, Bickel’s particular defense of the courts rested to a remarkable degree on faith in the judgment of the type of person in the 1950s and 1960s that would end up on the federal bench, their “moods” and “feelings.” 

For Bickel, the courts—because they based their decisions in reasoned deliberation—were the institutional site most functionally equipped to understand the totality of the legal-political system: “the enduring values of a society” (Bickel, Least Dangerous Branch, 26).  Critically, appointed judges were not just removed from electoral political passions, but they were also most temperamentally disposed to have the moods and feelings associated with a commitment to process itself.  As Bickel wrote, “judges have . . . the leisure, training, and the insulation to follow the ways of the scholar in pursuing the ends of government” (Bickel, 25).               

             As a consequence, Bickel above all embraced the institution of Supreme Court itself, regardless of his disagreements with specific rulings.  He and those like him considered the institution, its membership and its processes, as perhaps the defining embodiment of how judgment and procedural technique could be ideally combined.  And standing behind such defenses was an underlying belief that the courts—just as with the other institutions of intellectual and political life—would be composed of the same elite cohort that broadly governed the Cold War project at home and abroad.  All of this reduced the existential stakes of the inherent instability with the methods themselves.  Academics or judges (the latter who were effectively best thought of as scholars themselves) may misapply procedural techniques, but overall one could count on their basic judgment to sustain a broader postwar collective project and order—especially with its distinctive combination of capitalist democracy and liberal constitutionalism.  Moreover, faith in process over time, so the argument went, had its own educative function, moving an intergenerational interpretative conversation between legal academics and judges down paths broadly conducive to social stability and collective problem solving.

            Indeed, this faith in a shared educational and cultural identity—one linking the constitutional law professor in the academy to the sitting federal judge—helps explain a notable feature of Bickel’s orientation to the Supreme Court, again along with those like him in the 1950s and 1960s.  On the one hand, he was an outspoken critic of the Warren Court, arguing, as Parker describes, against the perceived lack of foundation in reason for various landmark decisions.  But on the other hand, Bickel nonetheless offered in The Least Dangerous Branch the era’s most famous defense of judicial review, one strikingly expansive in its scope.        

To a profound degree, one might argue that a similar reason explains why the turn to process in the mid-twentieth century generated a few “hegemonic methods” (Parker, 299) and a consolidated postwar framework: both scholars and institutional decision-makers operated in contexts with extensive amounts of background elite social cohesion.  Notably, such social cohesion was fundamentally grounded in an extreme racial, gender, and class narrowness of who was included and what ideas were seriously debated.  And by the late 1960s and early 1970s, both the postwar political order and the associated scholarly methods failed in dramatic ways to resolve underlying social conflicts or adequately explain the actual mechanisms by which legal-processes operated.  Vietnam and mass racial justice protests brought home the former, while growing disaffection with the hegemonic methods—whether pluralism in political science or legal process in law—spoke to the latter.  Thus, if Parker describes the period since 1970 as an era marked by a plurality of methods, at least some of this can be explained by the particular crises marking that mid-Cold War era.  These crises over time generated basic changes in elite composition and a related expansion in the methods new constituencies brought to the academy.

But one question this eye-opening book left me wondering was the extent to which we may be exiting that period from 1970s to 2020s.  If the breakdown of the hegemonic methods spoke to an underlying breakdown in the particular composition and identity of elite knowledge producers in the mid-twentieth century, faith in such a reconstituted class nonetheless persisted.  The last fifty years witnessed the rise of increasingly minute technical methods for selecting meritocratic leaders, presumptively from all walks of life.  These leaders were then intended to be the knowledge producers and institutional decision-makers, given their identified talents in the array of those procedural techniques unleashed since that midcentury era of a few, now antiquated methods. 

Yet, recent years have been marked instead by deep questions about how genuinely meritocratic are the structures for incorporating new elites.  And just as critically, decades of rolling social crises have produced profound doubts about the capacity of existing legal, political, and intellectual centers of authority to resolve social problems, not to mention the reliability of the wide range of techniques—economic, political, and legal—that have shaped prevailing conditions.  In effect, the result now increasingly appears to be a thoroughgoing crisis in both the composition of the intellectual and political classes and in both their expertise and judgment—their technical prowess and intangible mood.  Given all this, are we entering something new, beyond the modernist debates over truth and method?  And if so, in a moment of clear and expanding dangers to the academy and to the polity, along with those destructive forces are there nonetheless any meaningful possibilities also opened up for pushing beyond the limitations of the world that process created? 

Aziz Rana is J. Donald Monan, S.J., University Professor of Law and Government at Boston College. You can reach him at ranaaz@bc.edu.