Saturday, February 5, 2011

The Politization of the Federal Judiciary

I often wonder what constitutional law professors tell their students about the big cases.  These are the canonical cases every law student discusses at one time or another during her law school years, cases such as Youngstown Steel and Brown v. Board of Education, Marbury v. Madison and Dred Scott, South Carolina v. Katzenbach and McCulloch v. Maryland. I suspect that most professors keep it simple.  They talk about the Constitution and surely they talk about "law" as an abstract proposition.  They also bring up prior cases and spend much time "distinguising" them or "reconciling" them, or else arguing why the present case follows seamlessly from prior, settled law.

I understand why they do this.  They are law school professors, and this is a place where law must matter.  if not law, then what?

But here is the problem.  Constitutional law is not about "law" in the formal sense.  That is, constitutional law is not about the formal meaning of the privileges and immunities clause or the necessary and proper clause.  To be sure, this is what law professors would have you believe.  I am here to tell you that they are either lying to you (and themselves) or else they are so imbued in the law school orthodoxy that they can't tell any better.  And that's too bad.

Constitutional law is about myth-making.  It is about the stories we tell our children, about fireside chats and speeches dedicating national cemeteries during war. It is about slavery and emancipation, about nation founding and the idea of secession, it is about despair and hope and the possibilities inherent in each.  Formal law has a role to play in this process, to be sure, but not the way we usually imagine.

Next time you read Brown, for example, read it with an eye for the story Chief Justice Warren is trying to tell us, a story of racial equality and freedom.  Read Loving the same way, or Prigg v. Pennsylvania or Dred Scott. These cases are one at the same.  They are cases for which law plays a role, but only a secondary role.  Myth-making and the larger constitutional narrative plays a central role.  

In this vein, the New York Times opines today, quoting Lucas Powe, that Justices Scalia and Thomas are "taking political partisanship to levels not seen in over half a century.”  But to so understand their project is to miss the real story. Justices Scalia and Thomas are no different from Chief Justices Marshall and Taney, or Justices Brennan and Marshall.  These justices all had policy preferences that they wished to see reflected in law.  They also had stories they wished to tell, whether about the founding of the nation and its meaning or about racial equality under law.

But the real question is one of audience.  Think of Brown, or Dred Scott, or Marbury and who the intended audience for these opinions was.  Only then does the actions and opinions of Scalia and Thomas become puzzling.  To this day, the justices carry on their particular projects while hiding behind the overarching myth of judicial independence and impartiality, a myth that law professors are only too happy to foster.  Yet somehow, Justices Scalia and Thomas do not seem to care much for that mythology.  They are happy to show their true ideological stripes; they wear their politics on their sleeves, for all the world to see.

This raises two questions for me: one is the question of audience.  Who is it that these justices are writing and speaking for,  and why is their approach different from the approach taken by justices in the past?

The second is the question with which I began: shouldn't these actions and behaviors on the part of the justices play a role in our law school classrooms? For professors to choose not to talk about it is in itself part of the mythologizing process.  How long must the justices push this envelope for their actiosn to becoem part of the stories we tell our students?

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