Two Cheers for Candor

Although I found it horrifying, I also immensely enjoyed Mark Tushnet's post yesterday recommending that "liberals" abandon "defensive crouch liberal constitutionalism." It begins:

Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).

It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. 

My sense as a fond and frequent reader of Mark's work, in both its earlier and later periods, is that, rather than having to choose between reading his work as being in earnest and reading it as puckish, one should read it simultaneously as both. Like all of his work, including his more puckish posts and articles, his post should be applauded for its candor. Unlike some, Mark is willing to put his cards on the table, knowing that openness about these matters from legal academics won't do much to derail such a program and not caring much, I think, even if it does. All legal academics should be so candid and careless about consequences, but, alas, they often aren't.  

I do have some critical comments about the post. The first is to urge readers to pay attention to the implicit assumption, or perhaps Freudian slip, in that first paragraph, which effectively treats all those "generations of law students and their teachers" as if they were and are all liberals. Of course they weren't and aren't. I don't worry much about such an apparent assumption appearing in Mark's work, because he is much smarter than the average bear and knows better. If I were a conservative student, I wouldn't hesitate to take one of Mark's classes. I do worry about such an assumption in the hands of a dimmer, less self-aware, or more unconsciously programmatic law professor, however. Mark's post is, among other things, an advertisement for the continuing importance of ideological diversity in the hiring of law professors and the admission of law students.    

Second, I question Mark's labeling of the post as addressing the past and future behavior of "liberals." For one thing, some liberal legalists place more emphasis on the "liberal" part of the formula, and others on the "legalist" element. For another, "liberal" obscures too many intramural differences. Although it's a close call and I don't mean to white-wash anything, I think his post is more profitably read as referring to what legal progressives or leftists ought to do than it is as giving marching orders to liberals. Making assumptions about motives is generally a fruitless enterprise. Still, there is a case to be made that the best way to understand this post is as one issued specifically from the (less powerful) left, with the hope that enough impressionable (and more powerful) liberals will be cozened into taking it seriously and doing the left's work for it. Given that the left lost the Democratic primaries, I'm not sure why the liberals should do anything of the sort, and they might consider the possibility that some of Mark's cynicism is aimed at them as well as at the right. But some of them are impressionable, after all. 

Third, I think Mark's candor obscures, or even blinds him to, the complex dynamics involved in forming legal-political views. In the area of religious fraud and the law, I have written that it is a mistake to treat the shepherd and the flock as holding identical views. A minister may mouth doctrinal views insincerely and cynically, while her flock holds those views sincerely and tries to apply them in a principled fashion. The same is true in law--for which, on the whole, thank God. Ideas, once loosed on the world, have a life of their own and cannot be controlled by those who offer them up. Someone who offers a view of judicial restraint because it will advance her current political program will generally try to offer up seemingly politically neutral and compelling justifications for those views. And whatever her own motives in advancing that argument and her insincerity in offering the justifications for her position, some people will find the justifications compelling in their own right and hold fast to them. Some will even maintain those views after circumstances have changed and the center of gravity has shifted, although certainly many will eventually come around to the new center of gravity. Even if, say, liberal originalists or believers in judicial minimalism offered their views for purely political and instrumental reasons, employing their brilliance in justifying those views only as political tools, many liberals will believe those brilliant arguments even if their progenitors do not. Indeed, some of the progenitors will end up buying their own arguments; the most powerful form of deception is self-deception. Maybe the people who end up sincerely believing in those arguments are naive; if so, two cheers for naiveté. The best safeguard against sudden volte-faces of the kind Mark argues for here is the work that is put into justifying those instrumentalist arguments in the first place, including framing them as sincere and politically neutral, and the inevitability of many people taking them seriously in their own terms. Conservatives eager to take Mark's post as evidence that liberal legalism is a sham and that every liberal legalist is in on the sham should take these dynamics into account, and vice versa. 

As for Mark's recommendations themselves, they are fairly unremarkable. The only thing interesting about them to me is, again, the interesting dynamic of sincerity and cynicism they suggest. Surely many liberals will eventually take some of these recommendations on board. But not all of them will understand themselves to be following Mark's orders, and some would no doubt angrily and sincerely deny it if it were suggested that they were doing just that. A few out there may applaud his suggestions. But if he were, a few years from now, to give a keynote address at the American Constitution Society convention that said the same thing, I'm sure many would regard it as being in terribly bad taste and even insulting. This is, of course, one reason why I like Mark's work so much. A legal academic with political inclinations should always treat upsetting her allies as one of her primary goals, and one way to distinguish interesting legal academics from hack writers of shadow-amicus briefs is to identify those who never do so.

I am also not quite on board with Mark's paragraph about the culture wars. I agree with its "they lost" point in general terms, but not with its specifics; and I think he gives too little awareness to the financial and other motives for the combatants in these wars to continue believing that they are losing or under threat, whatever the truth may be. No one gets donations or galvanizes their base by talking about how well they are doing. Nor is it quite accurate to say, anent the recommendation that liberals take a hard line on culture war issues (aside from any actual substantive and/or normative objections one might have to this recommendation; after all, we continue to have a First Amendment), that doing so "seemed to work reasonably well in Germany and Japan after 1945." Analogies are dangerous in any case, but the premise here seems almost entirely faulty. For one thing, Mark omits to mention that taking a hard line after 1918 did not go so well. For another, the Allies did not take a particularly hard line after 1945--sometimes problematically so, but often for good reason and to good effect. Depending on what Mark thinks constitutes a "hard line," he might remember that the Allies quite rightly concluded that the Morgenthau Plan was punitive and stupid, and that even mention of the idea helped galvanize German resistance to surrender. If one is going to make such an analogy, one should keep in mind the entrenchment risks of a hard line strategy. American soldiers complained that the Morgenthau Plan was worth thirty divisions to the Germans.      

Of course, I agree with Mark's last point, and think his advice about Justice Kennedy should apply to everyone, not just the left. Another good way to distinguish the academic brief-writers from the actual scholars is the amount of attention they pay to patching or redoing Justice Kennedy's writing and massaging his ego.