"They Cite Baude, Not Balkin"

This is an enjoyable post by David Pozen, written as part of a 20th anniversary series on Balkinization. (Happy anniversary!) I appreciated both its reminder of Balkinization's role during the War on Terror and its discussion of the role of means-of-production and technological questions in the rise or fall in influence of something like Balkinization. I also agree with him that you should continue reading the blog.

But I did wonder about the aptness of this passage: "The Court’s controlling conservative bloc has no appetite for arguments promoted by left-liberal academic elites, even when framed in ostensibly congenial originalist terms. They cite Baude, not Balkin." I'm not sure this can or should be laid at the feet of "the Court's controlling conservative bloc." I do not say this to be rude. (Deflationary, perhaps.) But the reality is that none of the Justices cite Balkin--nor, as far as I can tell, have they ever, pre-or post "conservative bloc." They do cite Baude an awful lot. But Baude has been cited more often (that is, once, I believe) by current liberal Justices than Balkin has. And I would add that, on the whole and holding Justice Jackson in abeyance, based on the kinds of articles they cite, the Democratic appointees to the Supreme Court don't seem to have any particular interest in "left-liberal academic elites" either. Certainly that's true if you emphasize the "left" in "left-liberal academic elites." When they are not using academic citations to fight fire with fire, their interest, which is tepid at best, is mostly in "liberal academic elites, either centrist or writing in centrist mode, offering fairly staid and conventional doctrinal arguments of the sort that could have been written at any time in the last 70 years." The Democrats on the Court are not a "Nomos and Narrative"-citing bunch. (Mark Tushnet, who is as interesting as Cover, has been cited a couple of times in this era--for doctrinal criticisms of Roe and of the Lemon test. ) 

I don't mean this as a criticism of Balkin, God knows. For one thing, he is influential; for another, my own cite count at the Supreme Court stands at a steady and reliable zero. Most importantly, I don't see not being cited by the Supreme Court as cause for criticism. But I think the clarification is worth making, both because it suggests that this is not just about the indifference of "conservatives" and because it suggests that there might be a broader disconnect between the current state of the "academic legal left" and anyone on the Court--not just because its attentions have turned to projects like political economy, but more fundamentally because none of the sitting Justices particularly share the politics, commitments, or worldview that Pozen describes as characterizing the "academic legal left." I seriously doubt a Justice Garland would change that.

Nothing about this should be surprising; elite judges and elite academics are two different sectors of the establishment with a widening gap between them. But it does suggest limitations for the model that Pozen discerns and praises in the blog: "marrying moral commitment to legal craft" in the cause of "establish[ing], in real time, shared understandings, narratives, and positions about the biggest threats to the constitutional order." Pozen, to be fair, only suggests that the Court was or might be one "plausible part of the blog’s imagined audience or praxis." But perhaps it was always more accurate to think of it, and most legal academic blogs (this one included), as serving the more modest function of providing elite commentary that seeks to influence other elite commentators.