The Agents of Social Change

If We Were a Game of Thrones Noble House, Our Words Would Be: Judgement is Coming.

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.

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8 Responses

  1. Brett Bellmore says:

    Current social norms, either. Whatever public legitimacy the judiciary retains depends on, at all costs, NOT being seen as an agency of social change.

  2. Brian Frye says:

    Dave,

    I absolutely agree with these observations. And would love to see a more extensive assessment of the justices on these terms. Harlan I? Wilson? Jay? Taft? I think it all depends on when the assessment is made. I would add that, in my experience, the conservatism doesn’t begin “with legal training’s orientation toward the appropriate role of lawyering and judges.” On the contrary, law school selects for conservatism. As an artist changing careers and attending law schools, I was most surprised by the conservatism of my classmates.

    BLF

  3. Orin Kerr says:

    Dave writes:

    ********
    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.
    ********

    Dave, I think the reality is a lot more contingent than you’re suggesting. I went to HLS just a few years before you did, and that lesson is pretty much the opposite of what most of my professors tried to teach me in law school. At least as of the mid 1990s, most of the HLS faculty seemed anchored by the Warren Court. As a whole, the profs seemed to be of the view that it’s the highest calling for judges to reach outside their role to do Justice. Douglas was generally considered a great Justice because he was willing to do that; in contrast, it was pretty rare for professors to say positive things about Harlan outside of specific cases like Cohen v. California or Poe v. Ullman. That was my experience as a law student in the bulk of my public law classes, at least. (I’m curious, did you have a different experience?)

  4. Ari Waldman says:

    A fascinating post! I think Orin is right about the contingent reality of how we teach our impressions of the justices, if only because my experience at HLS mirrored Dave’s rather than Orin’s, and I went in the early 2000s. Younger professors of 6-10 years ago may have been more steeped in the 1980s conservative response to the Warren Court than their more experienced colleagues. Of course, this is all anecdotal. I wonder if there is any systematic study.

  5. Dave Hoffman says:

    Orin, well, it was a mixed bag. But I learned con law first from Charles Fried, who definitely talked glowingly about Harlan the Second. The point, though, is really Craig Green’s — we learn proper role by valorizing judges.

    Ari, I’ve always wanted to find some way to test the effect of teaching on lawyers’ ideological views (and, better yet, how they later perform as judges). But the task is pretty hard & complicated…

  6. Ari Waldman says:

    Dave: Very complicated. I’ve been thinking about that question ever since I started teaching. Way back when I was a TF for Morton Horwitz and doing my best to play the conservative to the admiration most students had for the Warren Court after sitting in lecture. Specifically, I wondered what effect, if any, does teaching material through your particular viewpoint have on students (and how they develop their own opinions and practices) versus teaching material as the devil’s advocate. I could see various possible answers: (1) sometimes, being too overt with our own opinions can cause a student to resist, encouraging him/her to take the other side; (2) but, how students react to how we teach may simply be a matter of validating or upsetting already established views; (3) if we play the devil’s advocate, do students get confused or notice our views anyway and find us less authoritative or trustworthy. And that names just a few possibilities. I’d love to think about this more… Maybe after the AALS hiring season is over! 🙂

  7. Joe says:

    His reference to Dukes is problematic — it is not that Scalia is a judge, it is that over the last few decades, a certain type of judge was confirmed. After all, four justices dissented on a key point.

    Dahlia Lithwick isn’t saying “the courts ought to be a mechanism of justice and progress here,” she is saying the SC interpreted the law (passed by Congress, who led the way) wrongly here.

    I also think referencing “late 19th century Supreme Court” skewers things, since that is but one aspect of a two century history. Overall, I find his remarks pretty unhelpful.

  8. TJ says:

    Dave, I think it is far more complicated than you depict with a dichotomy between Douglas and Harlan. I think the message is first that if you end up on the winning side of history, then you are in the “good” camp no matter how far you step outside the judicial role (e.g. Douglas in the old days). But if you end up on the losing side of history, you are more likely to keep your reputation intact if you stay within your role, than if you serve as the poster boy for everything that went wrong (Taney).