February 23, 2017

May 10, 2016


What’s Wrong with the Law, and in Particular with Harvard Law School

This is one of the more remarkable, blatant and contemptuous liberal screeds ever to appear on the Internet. I graduated almost fifty years ago from the school where this man now teaches, and to connect the dots from then to now is a task that is beyond my imagination. If you want to know how the left sees the law as a crude tool to get by judicial fiat what they cannot achieve through the legislatures, and if you want to know why the U.S. Supreme Court is no longer a court, but a Supreme Legislature that exists only to serve the left’s political agenda, look no farther:

Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).

It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. (They might be reversed, but now there’s no guarantee.)...

What would abandoning defensive-crouch liberalism mean? ...

1     A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.

So much for the traditional doctrine of stare decisis (“to stand with the things that have been decided”): decisions that one disagrees with are simply wrong from the start and need to be overruled at the first opportunity. Do you notice the one case that is not on this man’s list? (Hint: it starts with “H” and rhymes with “Yeller”, and has to do with the Second Amendment.) It’s probably omitted because, after all, the man does not want to lay all his agenda out there for everyone to see. He continues:

2     The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.

You’re welcome to what your victory will bring, I’m sure (“let thy will, not My will, be done…”). If this is what they teach at law school, can the seminaries be far behind?

Want more? How about a few hints for liberal judges (Judge Reinhardt of the Ninth Circuit needs no lessons, since he wrote the book to begin with) on how to get around precedent without bothering to overrule it, or how to fashion doctrine to undermine one’s political opponents:

3     Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling. Take Wal-Mart: Confine it to its unusual facts (a huge nation-wide class, a questionable theory of liability), and don’t treat it as having any generative power in other cases. Or Washington v. Davis, which said that disparate racial impact wasn’t enough to trigger strict scrutiny, but that sometimes such an impact could support an inference of impermissible motive: Play the “sometimes” for all its worth. Defensive-crouch liberalism was afraid to be aggressive about the precedents because of a fear of reversal by higher courts. That fear can now be put aside. (Judge Reinhardt’s essay on habeas corpus, in the Michigan Law Review, is an exemplary discussion of how liberals can exploit ambiguities and loopholes.)

4     Related: Remember that doctrine is a way to empower our allies and weaken theirs. Conservative decisions on class-action arbitration should be understood as part of a long-term project of defunding the left. Much of the current Court’s voting rights jurisprudence strengthens Republican efforts selectively to shrink the electorate. Similarly with campaign finance jurisprudence. I don’t mean that these doctrines are consciously designed by the justices to have those effects, but outsiders – academics and activists – should understand that that’s what they do. (Nor do I mean that the efforts always succeed – see Evenwel for a failure.)

So whom do liberals want to have sitting on the Supreme Court? Take a guess:

5     Our models are Justices William Brennan and Thurgood Marshall, not David Souter or John Marshall Harlan. With some ambivalence I’d add Justice Ruth Bader Ginsburg to the list, the reluctance arising from the fact that her work as a judge has been shaped more than it should be by defensive crouch constitutionalism, particular in her sensitivity to the possibility of backlash. Still, when the votes are there, she’s been much like Brennan and Marshall (personality aside). Famously, Brennan said that he’d been around long enough to know what it was like to win, and what it was like to lose, implying that “this too shall pass,” though it’s taken a long time. (Or, channeling Sophie Tucker [or Mae West, or Beatrice Kaufman], he ‘d been a winner and a loser, and winning is better.)

And he has saved his worst for the last (though I, too have lost all respect for his next target, after the unbelievably awful opinion he wrote in Obergefell v. Hodges):

6     Finally (trigger/crudeness alert), f[***—this is a religious blog—Ed.] Anthony Kennedy. I don’t mean that liberals should treat him with disrespect. But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial any more), but also trying to milk his opinions – and more generally, obviously conservative opinions – for doctrines that might be awkwardly pressed into the service of liberal goals. (Think here of how liberal constitutional scholars treated Kennedy’s [truly silly] concurring opinion in Parents Involved [“You can deal with the consequences of segregated housing patterns by locating new school construction carefully” – in districts that are closing rather than building schools], or his “views” about affirmative action, or recasting the Court’s federalism cases as actually good for liberals.) There’s a lot of liberal constitutional scholarship taking Anthony Kennedy’s “thought” and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it. (See agenda items 1 and 3 for how to treat those opinions.)

His parting shot may, alas, be the truest thing Prof. Tushnet wrote in his entire screed:

Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.

Have at him—but please keep things on the Christian side of civil.


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25 comments

Two viewpoints…

Man looking up:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The Lord looking down:
We all, like sheep, have gone astray,
  each of us has turned to our own way;
and the Lord has laid on him
  the iniquity of us all. - Isaiah 53:6

Jesus went through all the towns and villages, teaching in their synagogues, proclaiming the good news of the kingdom and healing every disease and sickness. When he saw the crowds, he had compassion on them, because they were harassed and helpless, like sheep without a shepherd. Then he said to his disciples, “The harvest is plentiful but the workers are few. Ask the Lord of the harvest, therefore, to send out workers into his harvest field.” - Matthew 9:35-38

Can a corrupt throne be allied with you—
  a throne that brings on misery by its decrees?
The wicked band together against the righteous
  and condemn the innocent to death.
But the Lord has become my fortress,
  and my God the rock in whom I take refuge.
He will repay them for their sins
  and destroy them for their wickedness;
  the Lord our God will destroy them. -  Psalm 94:20-23

[1] Posted by Doug Stein on 5-11-2016 at 04:24 AM · [top]

They’re out in the open now.  I thought Loretta Lynch couldn’t be worse than Eric Holder, but here she is, threatening and now suing my state using a theory of the Civil Rights Act which has been rejected multiple times by multiple federal court rulings.  They don’t care.  Congress has not enacted the laws they want, so they’re just making it up as they go.

[2] Posted by Katherine on 5-11-2016 at 06:36 AM · [top]

Judicial activists need to remember that if the will of the people is ignored too many times, the will of the people will eventually lead to the pendulum swinging back in the other direction.

[3] Posted by Undergroundpewster on 5-11-2016 at 07:49 AM · [top]

Half of the present Justices are Harvard Law School Graduates.  This should be a campaign issue.

[4] Posted by Pb on 5-11-2016 at 10:31 AM · [top]

No UGP [3}.  The people, the proles/serfs, will be kept in their place by these people.  That is why outlawing the ownership of guns of any kind is so high on the Progressive Liberals to-do list.  The next is interpreting the Constitution to effectively eliminate the rest of the Bill of Rights by suppressing opposing speech and writing by declaring it illegal “hate” speech,  suppressing non-state approved religions because they discriminate and are not inclusive of all perversions ,  only allowing people to “assemble” under government permit, allowing search at will,  forcing self-incrimination through means that these people otherwise detest because, taking property at will, having “secret” courts that punish “haters” and “hurters” etc. etc.  Another Amendment they really want done with is the 10th.  They want states to be just sub-components of the National Government.  Then the Progressive Liberals can use the “state” to control the proles.

[5] Posted by BillB on 5-11-2016 at 10:56 AM · [top]

Professor Tushnet has for decades been my favourite Crit (= member of the Critical Legal Studies movement). For his intelligence and candor, not his beliefs. His takedown of Laurence Tribe, “Dia-Tribe”, 78 Michigan Law Review 694 (1980) one of my top 10 favourite legal articles.

My favourite Tushnet statement is his answer some decades ago when asked how he would decide cases as a judge:  that he would choose the result that would most advance the cause of socialism, and then write the opinion in accordance with the prevailing Grand Theory [of constitutional law] of the day.

And one can sympathize with anyone no longer forced to pander to Justice Kennedy for a 5th SCOTUS vote.

[6] Posted by Real Toral on 5-11-2016 at 11:08 AM · [top]

That Loud “Woosh” you just heard is the Rule of Law being flushed down the toilet….
 
The Rule of Law is one of the principle reasons people migrate to this country, so they can avoid the tyranny of ideology…governance that is based on ideology (anything to further the cause) is arbitrary, capricious and tyrannical…something that we as a nation are getting closer to each day…

The Rule of Law, of course, has its roots in “Natural Law” which necessarily presupposes a Diety that defines limits and purposes… that concept is necessarily dismissed by persons such as Tushnet…

[7] Posted by aacswfl1 on 5-11-2016 at 01:07 PM · [top]

The rule of law also presupposed objective standards.  That the truth can be known and that finders of fact can objectively determine the truth.  This is being rapidly undermined by feelings.  That is “relative truth based on how the teller and hearer “feel” what is true.

We in this the the whole “transgender” fiasco.  If truth is objective and rational can objectively determine what is true based on observable and verifiable facts than what is going on is so absurd that there exists no argument that boys go into boys bathrooms and girls into girls.  But if feelings determine the truth then they win.  And the rule of law collapses.

How can any case be decided if it is based on feelings?  If the facts and truth depend on how a person “feels” and if that person is the sole determiner of how they feel, then how can what they say ever be a lie or shown to be a lie?  How do you determine a person’s feelings?  And whose feelings actually control?  The teller or the listener?  Suppose you objectively tell the truth and I “feel” that you are lying?  Do my feelings win?  Of suppose you feel you are telling the truth and I feel you are lying?

Actually when I went to law school the law was very well aware of this sort of problem and attempted to delay with it by insisting on objective standards as much as was humanly possible.  The a reasonable person was not the individual, but rather what an objectively reasonable person would do or determine under the same or similar circumstances.  It was a question of fact to be determined by a jury or other trier of fact.  Now in reality much of the law deals with the subjective, but nevertheless the danger of justice based on subjective feelings was recognized, and however imperfectly, minimized.

Now we seem to be heading in the opposite direction and making law based on subjective feelings.  But this is not law, it is the mob backed up by government power.

[8] Posted by Br. Michael on 5-12-2016 at 04:40 AM · [top]

Very remarkable post indeed.  It seems that the rule of law is breaking down.  On the one hand, you have these sort of “we control the courts; we can make whatever law we want” triumphalism.  On the other hand, we have Trumpian disregard for law.  See how popular a strongman such as Duterte is: elected as president of the Philippines despite saying that he was going to have criminals killed extra-judicially and would fill Manila Bay with corpses.

[9] Posted by John Boyland on 5-12-2016 at 08:21 AM · [top]

I believe the root causes is the MORAL breakdown of America. 

“If this is what they teach at law school, can the seminaries be far behind?”  Um, don’t look now, but it is my opinion that many of the seminaries have been teaching this sort of liberal drivel for decades.  My church actually calls seminaries “cemeteries” because many do not have life in them…very sad.

John Boyland - “It seems that the rule of law is breaking down.”.  No, it’s BEEN breaking down for 100 years, and the last 7 have been especially terrible.  This latest generation seems to have little appreciation for the rule of law. 

Yes, these people, who LIVE “end justifies the means”, are absolutely committed to breaking every rule and law on the books, so long as it furthers their liberal agenda.  They wan to “win” - it doesn’t matter HOW they win.  They will throw the rule of law out the window any time it suits their purpose.

[10] Posted by B. Hunter on 5-12-2016 at 08:44 AM · [top]

“For liberals, the question now is how to deal with the losers in the culture wars.”

I think academia, organized religion, popular entertainment (art?), and even science provide effective examples of where such activists are taking things, as they rage against Christianity and western culture. 

Why is it fundamentally intolerable in today’s society to include (inclusivity, diversity?) a bakery that elects not to provide a cake for a SSU?  Why is it that a state - a sovereign within the union - must be forced at Federal taxpayer expense to deny biology and infringe the privacy of its residents, in order to advance a uniformly leftist approach to the dysmorphia of a tiny minority?   

How are minority viewpoints treated in the toxic uniformity of academia?  How many orthodox bishops remain in TEC?  What happens to scientists who question global warming - or even simply the efficacy of the proposed remedies?

Of course, the true object of Tushnet’s hate lies beyond legal structures - the integrity of such legal structures may be dispensed with to achieve his end.  But relativism is simply an effective path to a destination of despotism, one that will enforce an ultimate (“acceptable”) uniformity. 

Once power is secured, a new set of absolutes will be enforced by activists such as Tushnet.  Caesar Nero was a despot who attacked Christianity and indulged in SSUs.  He was a tyrant who enforced his will on the people with violence.  I think the decadence and decline of the west will be characterized by similar leaders and behaviors.

[11] Posted by tired on 5-12-2016 at 10:21 AM · [top]

Stop supporting these institutions.  Don’t send your kids there and don’t contribute to their alumni fund raising.  The only thing that influences them is money and if donors turn off the juice, they will be forced to change.

[12] Posted by DaveG on 5-12-2016 at 12:26 PM · [top]

As if we needed another example of leftist compulsion, some in the ABA are seeking to make “hate speech” style laws an ethical violation for attorneys:

http://www.nationalreview.com/corner/435284/news-world-tolerance-american-bar-association-considers-speech-code-lawyers

With stare decisis and more conventional constitutional law not a consideration, Tushnet could easily shift focus: 

“No conservatives demonstrated any interest in trading off recognition of LGBT rights for “free speech” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.”

[13] Posted by tired on 5-12-2016 at 01:51 PM · [top]

My nick here is Jeffersonian, but I’m considering a change to “Cassandra.”  No, I haven’t made a convenient transition to female in a desperate attempt to be allowed into the ladies’ locker room, I just sounded the alarm years and years ago about who these people were and what they were after.  I was scolded here and banned (twice) at T19 for my trouble. 

If there is still any sentient being out there that doubts me, let me reiterate:  These people are fascist totalitarians.  They are ruthless, they are relentless.  Nothing will stand in their way.  Paper protections are worthless, as we can see from the above piece.  We either meet them now, in open political and social for a, or we will be meeting them in a more vigorous, and violent, milieu.  If they are not defeated and driven out of the public square, then kept there by unceasing vigilance, we are doomed.

[14] Posted by Jeffersonian on 5-12-2016 at 04:03 PM · [top]

I think that you need to read the article referenced here in light of this article.  It puts Tushnet’s comments into context.

This paragraph is particularly on point:

The tribe champions not the individual but the group, even though it recognizes that there are other tribes out there that must be kept in their places.  It is not apologetic for its own abuse of power but attacks the use of power by others as abuse.  It controls the speech, laws, and public square with its own, immense power.  Freedom is no longer based on conscience but is determined by the powerful majority and defined as the support of privileged groups.  All others must be silenced, made to conform in the marketplace, on the job, and in public discourse.  Not the emergence of individual tattoos of Postmodernity but gang uniforms and tribal tattoos for all members are the marks of political correctness.  If Postmodernity argued in favour of sexual diversity it was as a matter of the freedom to act as one wished.  Tribalism, however, argues for sexual identities and also insists that gender is not, as Modernity would have claimed, a biological matter but an innate orientation despite biology.  The tribal mentality shuts down free speech in the university and public square—it forcefully defines the new, totalizing ideology not by arguing from science (including politics, history, and economics interpreted as sciences) but by arguing sociologically.

A rise of a new totalitarianism.

[15] Posted by jamesw on 5-12-2016 at 07:31 PM · [top]

More than 30 years ago our State Supreme Court announced they were going to promulgate an ethical rule that would have prohibited attorneys from being a member of any organization that discriminated against women or gave them less rights than male members.  I and a number of others wrote letters to the chief justice saying we were going to file a federal civil rights action if that happened.  (The concern back then was it would ban you from belonging to the Catholic Church and other churches that didn’t have women clergy, or the Boy Scouts etc.)

The Supreme Court withdrew the proposed rule.  But this was back in the Reagan administration.  Such objections to legality seem quaint now.

[16] Posted by Jim the Puritan on 5-12-2016 at 07:33 PM · [top]

Thank you for this in depth explanation of a very real threat to being a nation of laws.  I think there has been an expansion of wrong headed judiciary.  For example it is wrong to treat an overreach by a federal rule making authority as settled law as is the case when a judge demanded a school change its policy on transgender students having access to private areas based on biology and not gender identity.  This was done because DOJ has decided that “sex” includes gender identity.  Was DOJ given the task of redefining sex for the purpose of enforcing Title VII (?).  Why no they were not.  IMHO it is a faulty premise.

I think if one were to look at those cases Tushnet trumpets about very likely many would rest on a faulty premise.  AKA Winning is easy when you cheat.  When what matters is advancement of an agenda it is important to stack up the lies high enough so that people can be awed by the pedestal they form.

[17] Posted by Paula Loughlin on 5-12-2016 at 09:47 PM · [top]

Alan has provided us with the single most important reason for voting for Donald Trump - whatever you may think of his style or agenda.. 

The Supreme Court nominations made by the next President will have far greater importance and impact than anything that a new President will do.  We can be certain of generations of doom (see above)  if Hillary Clinton is making the nominations.

[18] Posted by hanks on 5-12-2016 at 09:51 PM · [top]

Paula, #17, presumably you have seen the news this morning.  The Justice and Education departments are sending letters to all public school districts all over the country telling them that they must permit “transgenders” to use the facilities of their new preference or face loss of federal funding.  No medical certification is required.

[19] Posted by Katherine on 5-13-2016 at 07:37 AM · [top]

The AG just said that the civil rights law prohibits discrimination against transgendered persons on the basis of sex. Go figure.  They need to put sex back into gender to get within the law.

[20] Posted by Pb on 5-13-2016 at 10:18 AM · [top]

Quick money in millstone futures! Invest now!

Jesus said to his disciples: “Things that cause people to stumble are bound to come, but woe to anyone through whom they come. It would be better for them to be thrown into the sea with a millstone tied around their neck than to cause one of these little ones to stumble. So watch yourselves. - Luke 17:3

[21] Posted by Doug Stein on 5-13-2016 at 09:28 PM · [top]

#2, Congress is so beyond worthless, Iam ashamed before my Lord for the things I think being done to them: you know, walls, lead, gunpowder, etc…....

[22] Posted by Capt. Father Warren on 5-14-2016 at 09:01 PM · [top]

Read an article in the current issue of “Touchstone” that deals with the notion of trans-gendered identity.  I do not have the article in front of me so I cannot give you the title or cite to it properly.  However, the article is based on a noted psychiatrist’s analysis of the transgender phenomena and the observation based on medical science, that it is virtually physically impossible for a person to regenerate themselves into the opposite sex.  That being said, the surgery and hormone replacements resolves into mere cosmetic surgery designed to create a myth about a person.  Nothing will change the genetics.  From my reading of this analysis anyone who seriously considers oneself as being trans-gendered resolves into total insanity. Certainly any person that walks around and seriously insisted (s)he was a banana would be considered as insane…
therefore…..( you may complete the syllogism here)

[23] Posted by aacswfl1 on 5-18-2016 at 12:28 PM · [top]

I understand that the World Health Organization considers it a delusion and hence a mental illness.

[24] Posted by Pb on 5-18-2016 at 02:17 PM · [top]

The John Hopkins experience as related by Dr. McHugh : http://www.thepublicdiscourse.com/2015/06/15145/   

The Touchstone article mention above at 23 : http://www.touchstonemag.com/archives/article.php?id=29-03-025-v  Surgical Fantasy

[25] Posted by dwstroudmd+ on 5-18-2016 at 05:09 PM · [top]

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