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Linda Greenhouse on Using the Courts as An Engine for Liberal Social Change:
In yesterday's New York Times Week in Review section, Linda Greenhouse has an article on the barriers liberals face in repopularizing the notion of using the courts to enact "profound social change."

  I was particularly interested in something Greenhouse notes more or less in passing: namely, that there is a relatively clear vision of the Constitution and the role of the courts that is popular among liberal activists and academics. It's not unanimous, as Greenhouse notes — for example, Cass Sunstein isn't on board. But there's actually a pretty wide consensus on a lot of issues, as she notes in this partial list:
It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers' original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government's ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice's opinion a little over a week ago invalidating two voluntary school integration plans.
  By way of contrast, my sense is that there is significantly less uniformity on these issues among activists and academics who are conservatives and libertarians. If you attend a Federalist Society event, for example, you're likely to find a lot of divisions on these and other questions among Federalist Society members. You'll find social conservatives, strong libertarians, various strands of originalists, Lochnerians, legal process Bickelians, Burkean conservatives, judicial minimalists, John Yoo Article II types, and many more shapes and sizes and combinations of the above. (Perhaps the only issue on Greenhouse's list for which there is relative consensus among conservatives is the racial preferences/affirmative action question, and even that is hardly unanimous.) I haven't done a poll on the question, but I do think there is much less of a single "vision" as to the proper role of the courts among conservative and libertarian activists and academics.

  UPDATE: On today's Times op-ed page, Adam Cohen reminds us of his favorite strategy: to condemn conservative decisions striking down legislation as outrageous activism and conservative decisions upholding legislation as abandonment of the judicial function, with as much discussion of Jim Crow and Lochner as will fit in an op-ed space.
Jason F:
I won't purport to comment on the substance of your post, but Greenhouse's closing statement ("Now there's a plan") seems to be a very obvious reference back to her opening paragraph, not any sort of endorsement of Professor Tribe's strategy.
7.9.2007 1:59pm
anon252 (mail):
There you have the difference between a legal ideology that's purely results-based, and one that at least pays some heed to the notion that correct interpretation is objective and doesn't depend on reaching the "right" results>
7.9.2007 2:01pm
OrinKerr:
Jason F,

Ah, I hadn't recognized that -- you're right that it's a reference to the opening paragraph. I wonder, though, isn't it also an endorsement? I would be happy to change the post if I'm just reading it incorrectly, but I tend to think "Now there's a plan" isn't just supposed to mean that Professor Tribe is like a prisoner shackled to a wall who has no hope of his plan being adopted. (That is, the cartoon is about hopelessness; I didn't get te sense that Greenhouse thinks Tribe's startegy is hopeless, but rather that it is actually pretty good.) But I would be happy to defer to readers on this; I hope others will weigh in.

Orin
7.9.2007 2:07pm
GP:
It's amusing that Greenhouse quotes Cass Sunstein in an article about the capacity of the courts to produce major social reform; after all, his Chicago colleague, Gerald Rosenberg, is the author of the preeminent study on the (in)-ability of courts to produce major social change -- "The Hollow Hope."
7.9.2007 2:11pm
David Walser:
That consensus would obviate the need for a written constitution, wouldn't it? If judicial interpretations are not "tethered" to something, they are bound by nothing. Why is rule by judicial fiat to be preferred to rule by administrative fiat?
7.9.2007 2:12pm
M. Lederman (mail):
Orin: I'm not sure there's any more consensus among ACS types than among FedSoc types on many big issues. Think, for instance, of splits among the latter on issues such as the Establishment Clause, the President's power to initiate hostilities, even affirmative action.

But even if you are right, the important point is not what happens in public FedSoc or ACS meetings, or on the pages of law journals, but instead what happens behind the scenes, and, more importantly, in the Executive branch and among the jurists it appoints. And in that respect, I think the "establishment" Republican Powers That Be -- those who wield real influence in Administrations -- have been much more effective than has our side in appointing judges who are committed to a fairly uniform and concerted Rehnquistian program of rolling back many Warren- and Burger-Court precedents and, in general, making the courts much less accessible to most plaintiffs (whites complaining about affirmative action and property owners being the obvious exceptions), and making the law much more responsive to and protective of business interests and law enforcement. (The reports from the Reagan DOJ were the template -- see Dawn Johnsen's work on this.)

Think, for example, of the modern doctrines relating to so-called "Eleventh Amendment" sovereign immunity and to the use of "substantive due process" to cap punitives awards. For good reason, there is (as far as I'm aware) virtually no support for such things among the writings and speeches of the FedSoc and conservative academics; but the courts have been rarin' to go, full steam ahead, and have been enormously successful in fundamentally shifting the legal ground on these issues.

Of course, the Republican-appointed jurists are hardly a monolith, and I don't mean to suggest that there's some grand unified conspiracy on all hot-button issues -- Posner and Kozinski, for instance (and even Scalia and Thomas), split from the majority view on certain questions. But I think that as a general matter the Rehnquist/Roberts judicial "program" has been every bit as shrewd and as effective as the Warren/Brennan program before it. And I don't see a comparable effort, or implicit design, among Democratic judges these days.

But who knows what would happen if, by some miracle, the judiciary began to be more evenly distributed party-wise? If could be that a cadre of Democratic jurists would, like Brennan and crew, and like Rehnquist/Roberts, fasten upon a fairly deliberate and effective shift on some constitutional doctrines. If so, I doubt it will be based on any uniform ACS-published design, any more than Rehnquist/Roberts have followed FedSoc talking points. All of which is to say that the private and publicly stated agendas do not always coincide.
7.9.2007 2:16pm
ronnie dobbs (mail):

in general, making the courts much less accessible to most plaintiffs (whites complaining about affirmative action and property owners being the obvious exceptions)


Of course, as we all know, whites who are the victims of government-sponsored racial discrimination should just lie back and think of England.
7.9.2007 2:25pm
Andy Freeman (mail):
Why is the amendment process so unpopular?
7.9.2007 2:27pm
OrinKerr:
Marty,

We're in agreement that what the academics and activists think has only a very tenuous connection to what actual decisionmakers think.
7.9.2007 2:33pm
Jason F:
I tend to read "Now there's a plan" -- without any adjective modifying plan -- as a slightly sarcastic mild condemnation of the plan under question. But that's probably just my own cynicism shining through. I couldn't begin to guess how Greenhouse intended it, and don't think it translates very well in print.
7.9.2007 2:33pm
Guest44:
I got a good laugh out of that Cohen piece. Brilliant self-parody.
7.9.2007 2:47pm
Ignatius (www):
That Cohen piece is pretty bad. We need to retire the phrase "judicial activism." Or at least put it on hiatus until sometime can explain what it means.
7.9.2007 3:04pm
jwilcox1024:
Cohen:


The most basic charge against activist judges has always been that they substitute their own views for those of the elected branches. The court's conservative majority did just that this term. It blithely overruled Congress, notably by nullifying a key part of the McCain-Feingold campaign finance law, a popular law designed to reduce the role of special-interest money in politics.


I learn something new every day. Real judicial conservatives want to repeal Marbury v. Madison so the entire notion of judicial review is thrown out the window.
7.9.2007 3:06pm
OrinKerr:
To avoid mischaracterizing Linda Greenhouse, I took out the two sentences. (It wasn't really relevant to where I was going with the post -- I probably should have left it out in the first place.)
7.9.2007 3:11pm
Anderson (mail) (www):
"Now there's a plan" is surely almost always sarcastic, no?

Maybe italics on the "there" would've helped. Not sure the Gray Lady does italics, however. These typographical fads are prone to die out.

Re: "formal and ahistorical neutrality," I wish some clever conservative commenter (or VCer) would rebut the claim that the framers of the 14th Amendment pretty clearly favored racial preferences as a tool for desegregation. One can argue the policy wisdom thereof, but I have a hard time seeing how any originalist argument can avoid that.
7.9.2007 3:34pm
Jeff R.:
Anderson: Generally, doesn't pointing out that the framers of the 14th saw it as no barrier whatsoever to laws against miscegenation take the entire 'Radical Republican Originalist' argument off the table for both sides?

Better to stick to textualism, in which "equal protection" cannot be straight-facedly construed to require unequal protection.
7.9.2007 3:51pm
Observer (mail):
The question is why you would bother reading Mr. Cohen's column at all. Life is too short to waste on complete idiots.
7.9.2007 4:28pm
Dave N (mail):
Observer,

I agree, but I still spend a lot of time here.
7.9.2007 7:09pm
Thales (mail) (www):
Jeff R. says: "Generally, doesn't pointing out that the framers of the 14th saw it as no barrier whatsoever to laws against miscegenation take the entire 'Radical Republican Originalist' argument off the table for both sides?

Better to stick to textualism, in which "equal protection" cannot be straight-facedly construed to require unequal protection."

Is there any evidence available for the claim in the fist part of Jeff's first paragraph? Or rather is it just the lack of a movement to repeal such laws contemporaneous with the framing of the 14th amendment. John Bingham (principal framer of the 14th) may well have opposed such laws on the basis of his amendment (which he also intended to incorporate the protections of the Bill of Rights against the states, which incorporation the plainest reading of the text supports, according to the most recent respectable scholarship).

As for the claim in the second paragraph, what is the "straightfaced" reading of "equal protection"--it's not self-interpreting?
7.9.2007 7:56pm
Scipio_79:
Cohen does give a definition of judicial activism and its the same definition the Times used in the June 29 editorial "Resegregate Now." Cohen states that judicial activism is "Federal judges relying on the Constitution to tell elected local officals what to do." That's activism!?!?! It so, please sirs may I have some more.
7.9.2007 8:14pm
just me:
Prof. Lederman -

I disagree with your statement that the current Republican-appointed judges are more in sync than their Democratic counterparts. On the hot-button social issues, the left has been in sync on Carhart, abortion generally, Lawrence, etc., as well as affirmative action, death penalty. It is Kennedy, and before that, O'Connor, that swung back and forth on all those issues. Maybe Kennedy had fewer joins-to-the-left this term than some other years, but by contrast, when was the last time that Souter joined the Right in upholding an abortion restriction, or a death penalty, etc.? I'll grant that Breyer is marginally in play on some Establishment Clause (e.g., 10 Commandments) and Speech (e.g., Morse), but nothing to rank with Kennedy.

Further, on the Eleventh Amendment, the Left Four have stuck together, while it is the Right that splintered in Hibbs on FMLA (WHR along with SDO), in Lane re ADA, etc.

So the evidence for more uniformity within the Right than Left seems weak, to me. It seems the real complaint is that the Left, even though hanging together, just doesn't have the votes. But that's an entirely different point.
7.10.2007 4:06pm
State lawyer:
Marty -

Your mention of the 11th Amendment as a big revolution reminds me that I've always wanted to ask others this question -- do you see any real-world effect of all that drama? In my State, and I think in most, those decisions meant squat, other than delaying a lot of cases for years. The ADA's employment protections are duplicated in the Rehabilitation Act, and most circuits have held that the Spending clause trumps the States on that. The FMLA went the other way. The ADEA and some ADAs do get bounced over to state court, but plaintiffs do just as well in our state court system as in federal. The federal judges are far more likely to give defensive summary judgment than state judges, who send almost anything to trial.

So are plaintiffs worse off? Maybe the fancy legal theory is wrong about immunity, but in the real world, I don't see the big loss.
7.10.2007 4:20pm