Critical Theory and Ideological Drift: Normal, Mutual, and Potentially Productive

It takes a while--a very long while, sometimes--for serious analyses of a new Supreme Court opinion on a socially contested issue, let alone one often cast as the contested issue of our times, to shake out and emerge from the welter.

There is a kind of common pattern to events. First comes the unstinting praise, the joy and relief, the casual forgetting of inconvenient predictions--and, on the other side, outrage, defiance, scorn, calls for constitutional amendment, the campaign posturing, and so on. Perhaps a few voices emerge, a couple centrist and a couple radical, with serious critiques, but they are rare and rarely heard. Certainly, given the usual divvying up of sources in news stories between the representatives of liberal conventional wisdom and those of conservative conventional wisdom, those views rarely gain any hearing outside limited niches. People who support the outcome but question some of the reasoning, or much of the writing, are also often understandably wary of speaking too early. They do not want to spoil the moment, or be misunderstood as not supporting the cause. They also fear professional obloquy for going against the consensus; they know that in the academy as elsewhere, one is generally better off being conventional or silent on such matters rather than taking the risk of unconventionality. Or--somewhat like me--they think of profound wrongs and injustices done to the group served by the opinion, weigh the little wrongs of the opinion against the greater good gained and joy felt, and are reluctant to seem like spoilsports, even though they know that this is surely not a sound academic consideration. A conventional wisdom emerges and solidifies. The discussion that follows later may be more credible and thoughtful, but now faces an uphill battle.

In the medium term, over the next year or two, one can expect much of the constitutional law division of the academic corps to turn to what one might call its primary job description in our times: serving as a kind of collective esprit d'escalier for Justice Kennedy. A similar call to duty arose after United States v. Windsor was released. Volumes of articles since then have sought to rewrite Kennedy's opinion in Windsor, to explain what it "really" meant, to uncover its purported hidden genius, to argue more or less convincingly that it's much better or clearer than people have said--or, failing all that, to defend the virtues of obscurity in judicial opinion writing. It is astonishing how much of the legal academy and its resources have become devoted to serving as post-issuance re-drafters of the opinions of one lone judge. Some time after all that, the real work of analysis may begin--although now, as I said, it will labor in the face of the headwind provided by the conventional wisdom that by now has already formed.

All this is to say that I'm holding off for a while on offering my broader thoughts about Justice Kennedy's opinion in Obergefell, other than to note that it is shorter than I expected but still suffers from Kennedy's usual failings as a writer, that I am very glad at the outcome but not enough so to treat poor writing as great writing, and that this case will be much easier to teach than Windsor.

I did, however, want to pick up on Jack Balkin's post from yesterday titled Sam Alito, Critical Race Theorist. Balkin writes, on the evidence of Alito's dissent, that "social and religious conservatives are reviving left-wing arguments made in the 1980s and 1990s by radical feminists like Catherine MacKinnon and by critical race theorists like Mari Matsuda." He concludes, on a note of--what, exactly? Amusement? Disbelief? Scorn? None of the above?--as follows: "Sam Alito as Mari Matsuda and Catherine MacKinnon. Talk about your ideological drift."

Although I saw it somewhat differently, I agree in general terms. I am moved to point out that I wrote something similar three weeks ago. There, I focused less on Critical Race Theory in particular than on critical legal theory more generally. I wrote, similarly if more cheerfully:

The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. . . . I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.

I do not mean to minimize the differences of detail or perspective between our two posts. Among others, I focused on "CLS" while Balkin focuses on "CRT." Still, I am understandably receptive to the argument that some of the ideas that characterized critical legal theory of either variety in the 80s or early 90s, or some of the identity politics of that era, are now re-emerging on the right side of the field. I think it sensible and unsurprising. I do not think it takes much cheek on Alito or anyone else's part. There is no doubt that Alito is not one's idea of an "outsider." But then, neither is Hillary Rosen. Such is the nature of American pluralism, of shifting social tides, and of the vast and varying circles of the American elite, that its members may feel, rightly or wrongly, simultaneously like insiders in some arenas and outsiders in others. In any event, as I argued in the earlier post, critical approaches are in large part strategic devices, and it makes sense that individuals or communities within the legal or political sphere that consider themselves to be fighting a rearguard action will take up the tools that fit their perceived position.

Apart from agreeing in broad terms with Balkin while thinking that this is neither terribly surprising nor especially "rich" of Alito, I do want to offer two somewhat different points. First, Balkin focuses entirely on Alito and on "social and religious conservatives," and not at all on the majority, or on liberalism or the left. As I suggested in my earlier post, however, one may expect to see reversals or "ideological drift" on both sides. In an era in which the Court and the legal establishment were viewed by the left as bastions of conservative ideology, it was not uncommon to see writing that critically challenged the clarity, determinacy, or the very meaning of general values like the "rule of law" and mocked rote invocations of those values as pompous, credulous, strategic, manipulable, deliberately obscuring of true power relations, or all of the above. In contrast, these are the days of frequent naive enthusiasm among liberals on the left about the rule of law and of capacious legal values like equality or dignity; of regular invocations of those terms and values without much critical second thought; and of appeals to legal approaches, like originalism, that used to be the sole province of the right and the target of specifically "critical" criticism on the left. Ideological drift, like Freaky Friday, generally involves two partners switching places.  

Second, let me suggest that in the longer run, once the initial run of praise, condemnation, and rewriting has taken place around Obergefell, there will be a continuing role for critical theory, of the CLS or especially the CRT variety, that involves more than just poking fun at Alito or giving new strategic tools to the right. It is neither a controversial nor, as I am making it here, a critical or negative point that the decision to treat SSM as the spearhead of the movement for LGBT rights was a strategic one, and that part of the goal involved focusing on an issue and an institution seen as solidly bourgeois and middle-class. Although considerable consensus emerged around this issue for various reasons, including both sincerely held views and strategic ones, as well as the lockup of financial resources within the movement, it was the subject of significant initial debate within the LGBT community. There remain critics who worry about the reification of institutions, like marriage--that most profound of unions--that ought to be queried, queered, or even eliminated. For the most part, and whatever their self-conception may be, American progressives are basically bourgeois individuals with solid middle-class values. They talk more these days about economic inequality and reform, but end up doing and achieving more on non-economic social issues that concern themselves and their own interests (although those interests are certainly also shared by others outside their class). They would rather win with Hillary than lose with Warren or Sanders, and that means focusing on social and culture-war gains and once again relegating more thorough or radical economic reform, let alone the serious rethinking of basic social institutions or conventional power relations, to the sidelines.

None of this ought to be surprising, although it is raised nowhere near as often as it might be. I do not raise it here for purposes of criticism or derision. My point is simpler than that. Surely, beyond simply pointing to Alito and likening his words to those of critical race theorists of the past, there will remain a more serious and fertile task for the remaining devotees of CLS or CRT. Obergefell is an obvious rich subject of analysis and criticism through lenses of that sort. The decision, and our generation, surely merits a new and equally applicable go-around with some old ideas. No doubt an article is out there just waiting to be born, with the title of Obergefell and the Interest-Convergence Dilemma.