Weekend Reading: Driver, Reactionary Rhetoric and Liberal Legal Academia

Justin Driver has an excellent paper by that title in the new issue of the Yale Law Journal, which is an excellent issue devoted to Bruce Ackerman's new We the People book. Here's the abstract:

As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to misapprehend the nature of that mainstream opposition, contending it assumed more aggressive forms than it actually did. Upon examining the actual arguments respected figures wielded against the Civil Rights Act during the 1960s, certain patterns of argumentation become almost immediately apparent. Mainstream critics consistently opposed the legislation not by challenging it head on, but instead by employing three standard arguments that Professor Albert O. Hirschman’s The Rhetoric of Reaction identified as sounding variously in perversity, futility, and jeopardy. In addition to demonstrating how Hirschman’s taxonomy illuminates mainstream opposition to the Civil Rights Act, this essay proceeds to argue that modern legal academia accords The Rhetoric of Reaction inadequate attention. That is so because the forms of argument Hirschman explored now frequently appear in what would initially seem an improbable place: the scholarship of liberal constitutional law professors. Left-leaning legal scholars often propose revised assessments of high-profile Supreme Court opinions, asserting that—properly understood—those opinions have had perverse effects, ended up being futile, or jeopardized some larger achievement. Legal scholars also deploy such reactionary rhetoric prospectively, warning about the dangers that they assert will accompany future efforts to issue progressive judicial decisions. Given the prevalence of reactionary rhetoric among liberal law professors, it is crucial both to grapple with the reasons that may explain its current ascendance and to identify some of the undesirable consequences that could flow from its common usage.

I think it's a terrific read, although I don't necessarily agree with all of it.

It is worth noting two caveats Driver draws from Hirchsman's excellent book:

1) "Reactionary rhetoric is not the exclusive province of reactionaries. To the contrary, non-reactionaries can, under particular circumstances, feel moved to advance such arguments." 2) "In addition, Hirschman noted that his examination was primarily concerned with classifying and exploring recurrent rhetorical tropes, not assessing the underlying validity of those arguments within discrete historical contexts. Hirschman understood that simply because 'an argument is used repeatedly is no proof, to be sure, that it is wrong in any particular instance.'"

Thus, reactionary rhetoric may not be limited to liberal legal academics: it may indeed, for various reasons, be a standard trope for legal academics of various stripes. And the presence of a reactionary argument does not mean that the concern expressed is necessarily wrong; moreover, given the complexity of legal and social change and the lack of agreement on what constitutes a good outcome, it will be difficult after the fact to draw strong conclusions about whether a reactionary argument was correct. Repeated evidence that the sky did not fall completely, however, offers good reason to be avoid dire predictions when making a reactionary argument. For these reasons, I think Driver is on weaker ground when he expresses concern that reliance on reactionary arguments could produce "an unduly anemic understanding of the Supreme Court’s capacity to promote social change," and on stronger ground when he argues more modestly that reactionary tropes can be "overemployed." Nevertheless, he marshals his arguments and examples well and enjoyably. I particularly enjoyed this paragraph:

A second explanation for the trend in liberal academia’s usage of reactionary rhetoric stems from the nature of the academic enterprise. Professors often establish their own scholarly agendas at least partially in response to the generation of scholars who preceded them. If the generation of liberal scholars who came of age during the Warren Court and in its immediate wake heralded the Supreme Court’s ability to refashion society, it is not especially surprising that subsequent liberal scholars would dedicate themselves to revising that received wisdom. As the scholarly pendulum regarding the Supreme Court’s efficacy began to swing in the opposite direction, reactionary rhetoric fairly cried out for usage. The perversity argument, in particular, seems almost irresistible for those possessing the sensibilities of a legal academic. Although Hirschman did not portray the perversity thesis in these terms, his explanation of its mechanics helps to capture some of perversity’s appeal for academic audiences: “This is, at first blush, a daring intellectual maneuver. The structure of the argument is admirably simple, whereas the claim being made is rather extreme.” Later, Hirschman described the perversity thesis as “[s]imple, intriguing, and devastating.” It seems difficult to imagine any three adjectives to describe an academic article that would more readily grab law review editors by their lapels.