The Agents of Social Change
Matt Yglesias chides progressives for thinking that judges are their natural allies. Not only has “the judicial branch has been a very conservative elite-dominated institution” throughout most of American history, but “fancy lawyers [who make up the bench] are just as much the social peers of business executives as ordinary politicians are, but fancy lawyers aren’t accountable to voters the way ordinary politicians are.”
This is in the main right, but wrong in its diagnosis of partisanship. Lawyers are generally conservative – in their habits, their attitudes towards social order and the virtues of wealth-creation, in their risk-preferences. (This is why, for example, teaching entrepreneurial law is hard, and why venturers hate their lawyers.) And it’s fair to say that most lawyers who become judges aren’t known to be wild iconoclasts or fire-breathers, though there are exceptions to every rule. But there are literally thousands of judges in this country, not merely the nine platonic guardians who sit above us. Many of those judges are elected – does Yglesias really think that democratic accountability will result in measurably better outcomes for progressives?
I think that the problem Yglesias identifies doesn’t lie with lawyer’s eliteness, or their partisanship. It’s with legal training’s orientation toward the appropriate role of lawyering and judges. Law school inculcates lawyers in a tradition where it’s seen to be bad to reach outside of one’s role. We learn this by talking about Justices as good (or bad) examples of the rule. Justice Harlan 2: Good. Justice Douglas: Bad. the first Justice Marshall: Excellent, but for the fraternizing with the Executive. Justice Taney: Boooooo. The Current Chief Justice: a master at maximal minimalism. As Craig Green has argued, this socratically-taught, historically-contingent, role-differentiation is at the core of the judicial activism debate. Thus, to the extent that the Justices in Dukes saw systemic change of the scale demanded by the Walmart plaintiffs as an extraordinary and invasive remedy, they would have balked. It’s not because they are elite. Nor are they are pro-business, whatever that means. (And what kind of ignoramus would self-identify as anti-business?). It’s because Dukes imagined an active & socially intrusive role for judges (and juries) that the current legal norms can’t swallow as legitimate.