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Monday, March 13, 2017

Crowding Out Progressive Constitutional Law

The election of Donald J. Trump was devastating for any progressive vision of the Constitution.  With a conservative majority in place after Neil Gorsuch is (almost certainly) confirmed, the losses could mount for decades to come.  It was almost one year ago that Mark Tushnet posted about “defensive crouch” liberal constitutionalism, a crouch featuring “every liberal position asserted nervously.”  My argument in this post is that progressives have gone too far back into that crouch too quickly.  Being in political and/or judicial opposition does not mean one has to only play defense.  Opposition can entail offense too.

Constitutional law is dominated by Court-chasing scholarship, and that tends to be majority-chasing scholarship.  Scholars tend to write for or against a decision or approach adopted by a majority of the Court.  With the rise and rise of the powerful executive branch, scholars now are executive branch-chasing, writing for or against some new assertion of executive power made by the executive branch.  Again, the result is the same: the scholarly frame is what majorities are doing, and the opposition agenda is more focused on critique of majorities and only incidental introduction of alternatives.

Writing about what those in power do is an important thing to do.  Indeed, it might be the most important thing we do right now.  However, the focus on the majority in power is not usually so intense as to crowd out proposals for and consideration affirmative alternatives.  Major jurisprudential transformations are often developed when in the political and legal minority.

The question that I wish to ask is whether it is different now that Trump is President.  The intensity of the focus on the majority can be proportionate to the damage the majority threatens to do.  When those in power are particularly threatening, it might make it all the more sense to focus intellectual energies on disputing what majorities are doing.  Why is it worthwhile to argue what courts should do if courts might not meaningfully exist anymore? Isn’t it better to direct all energies towards playing defense against the really bad things the majority could do, rather than taking time to argue for something quite different?

I do not mean to question this as a topic, but instead to suggest that a major and neglected opportunity cost comes along with that focus: scholarship in opposition.  I have written before of “government in opposition,” the idea (common overseas) that those in opposition should have the ability to develop their own agenda even while in opposition and not merely respond to those in power.  Scholars need to have the same priorities.  While in opposition, some scholars should write about what their perspective would mean if they had power to propose and not just power to oppose.  Oppositional scholarship of this form would not only talk about what a conservative Court did wrong, but also (or instead) how a liberal Court would have proceeded quite differently.

Consider, for instance, when I graduated from law school, nearly twelve years ago now.  Popular constitutionalism was the trendy constitutional theory.  Being in the minority in the judicial branch for many scholars did not even mean dismissing the arguments of judicial majorities, but meant retreating from the judicial branch altogether.  Important scholarly debates were generated about constitutional law outside of the courts—but opportunity costs come along with these debates.  No new alternative vision of what a progressive Constitution should look like was articulated often enough or loudly enough.  As I wrote in Slate, any “heroic vision of our courts” was fading.  To continue with the sports analogy (perhaps too far!): the question for many progressives was how many points to give up in court (pun intended), rather than how to start scoring points on their own. 

Consider, by contrast, a progressive student graduating from law school last spring.  They went to law school when a progressive former professor of constitutional law was in the White House and nominated two new Justices to the Supreme Court.  Some of their fellow students might even have gone to work for that President.  They might have read attempts to supply the Court with a progressive theory—whether it is Jack Balkin’s living originalism, David Strauss’s common-law constitutionalism, or the combination of essays produced by the American Constitution Society for Law and Public Policy.   The law student of today was present at the creation of a progressive agenda created by a progressive majority.

What of the first-year law student in two or four years? Will they be reading critiques of the Trump Court only, or proposals for what the Booker or Cuomo Court should do too?

Posted by David Fontana on March 13, 2017 at 03:10 PM | Permalink


Well, we calling the event here as Trump efect. Now the neo liberal speech is spread on many place in Brazil. Make the state smallest, selling public companies to private corporation on oil and gas..and go on. Trump election is a bad, really bad signal to the world.
God bless you.

Posted by: Junior Rezende | Mar 20, 2017 7:01:58 PM

David, thanks for the response. Offering one's own agenda is the lazy and easy thing to do. And as long as one's agenda pleases other academics, it tends to be rewarded, too. Given that, I don't see a big risk that this will stop anytime soon.

Posted by: Orin Kerr | Mar 13, 2017 9:26:08 PM

Orin, thank you for your comments. Two responses:

(1) My post is meant to be largely prospective. You are right that affirmative agendas have come from those in opposition in the past. My question is whether we are so focused on the Trump Administration that opponents--from Never Trumpers to progressives--will run out of intellectual oxygen or resources to propose their own agenda.

(2) Any argument that starts from the terms set by someone else is inevitably going to make a less affirmative and more responsive argument. For instance, If I argue that something is wrong with Casey, and a progressive alternative would be better, I have already used some of my 30,000 words on summarizing and responding to Casey; I have already conceded some basic frameworks (language, relevant precedents, etc.) adopted by Casey; and so on. This is the nature of legal scholarship, since so much of it is marketed and defined by important decisions made by those in power, and this is why legal scholarship is shaped so much by those who are in power.

David Fontana

Posted by: David Fontana | Mar 13, 2017 8:54:29 PM

Howard, thank you for your question. I do think these themes are internalized by some number of law students. Their professors are influenced by these themes and mention them implicitly or explicitly in their teaching. Casebooks feature these debates. Students go to ACS or Federalist Society events. Student serve on law reviews and see new articles. David Fontana

Posted by: David Fontana | Mar 13, 2017 8:50:25 PM

Well, gay rights is a significant issue; so is the preservation of affirmative action - at least people act as if it were important, anyway. I think a problem with the progressive constitutional agenda is a real dearth of great progressive constitutionalists on the Court going back to Brennan. Ginsburg is an icon, but what constitutional theories, ideas or even noteworthy opinions will she be remembered for? Kagan is a brilliant lawyer who seems much more comfortable writing about statutes or certain pockets of First Amendment doctrine than with advancing a broad liberal agenda on big constitutional questions, at least so far anyway, though her academic work gives me no reason to expect that to change. Unlike some people, I have great respect for Breyer, and his dissent in Parents Involved is a lovely, humane piece of work, but his constitutional project never won many adherents and even that dissent was more a frustrated cri de coeur than something people could build on. And on lower courts, there just aren't liberal Easterbrooks, Kozinskis, Posners, even Suttons or Gorsuches; what you have are gifted liberal technicians, like Garland, or aging lions like Reinhardt whose work is so far out of step with where the Court is or how young lawyers think about law nowadays as to have become basically irrelevant. There are a few prospects out there, but the chances of any of them becoming even half as influential as Scalia was are very poor, I should think.

Posted by: Asher Steinberg | Mar 13, 2017 8:14:30 PM

Is there really a shortage of law review articles in which authors argue that the Supreme Court should do something really liberal that the current Supreme Court is very unlikely to do? I would think it's the most common kind of article out there.

Posted by: Orin Kerr | Mar 13, 2017 7:58:24 PM

But at least for the courts and the cases read in the standard first-year Con Law class, were students getting that vision? The progressive vision never carried the day on SCOTUS on any (or at least most, depending on how one sees the result in Sebelius and maybe Whole Women's Health) significant issues. If I am a progressive student right now, I see a lot of discussion of progressive constitutional ideals, but none of them making it into the doctrine.

Posted by: Howard Wasserman | Mar 13, 2017 3:43:27 PM

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