The legal Left reacts with tantrums because it doesn’t even understand the idea that written law is how democracy works.
The legal Left reacts with tantrums because it doesn’t even understand the idea that written law is how democracy works.
M ark Joseph Stern of Slate has written a report from the front lines on how American law-school faculty members and students are handling the first year under an originalist Supreme Court. Every American citizen who cares about our legal system should pay close attention — but not for the reasons Stern wants. The picture that emerges from this and much of the rest of the Left’s legal journalism at the start of the 2022–23 Supreme Court term is of a movement having an emotional meltdown because its intellectual framework leaves no room for an elite institution they don’t control and can’t intimidate.
Snowflake Professors
Stern talks to a number of law professors, and they all seem to use the same vocabulary of emotional trauma to describe losing court cases:
When the [Dobbs] decision came down, [UC–Berkeley School of Law professor Khiara Bridges] got a migraine for the first time in a decade. The image of the court as a majestic guardian of liberty was, she concluded, “a complete lie.” And it wasn’t just about her own personal feelings, either: Now she had to teach her students about the work of an institution that made her sick to contemplate. . . .
Serena Mayeri, a professor at University of Pennsylvania Carey Law School, traces her recent disillusionment to Trump v. Hawaii. The fact that Kavanaugh’s predecessor, Justice Anthony Kennedy, sided with Trump “left me deeply shaken,” Mayeri said. “It was weeks before I could bring myself to read the opinions in full.” . . .
Tiffany Jeffers, a professor at Georgetown University Law Center . . . told me that after the flurry of hard-right rulings this June, many professors had their “own personal grieving period.”
Stern even quotes his own father as citing the Court’s decisions as his reason for retiring as a professor at Florida State University College of Law. My immediate response to this is that lawyers lose cases all the time, sometimes with catastrophic consequences for their clients — indeed, most legal cases end either with one side losing or both sides settling for less than they wanted. Legal activists lose battles every year, some of them permanently. If your job is teaching the law to students, part of that job is teaching them to “think like a lawyer.” That includes learning to handle temporary setbacks and permanent defeats. Professors who hit the fainting couches and can’t even read opinions they disagree with are not good role models for people who are learning how to practice law.
You mean to tell me Anthony Kennedy wrote or joined an opinion based on reasoning you didn’t even recognize as law? Welcome to the party, pal. Now you know how social conservatives felt after Planned Parenthood v. Casey and Obergefell v. Hodges and Kennedy v. Louisiana. You know how conservatives have felt about a whole constellation of reversals and inventions in constitutional and statutory law ever since 1937.
Mary Ziegler, a pro-abortion professor at UC–Davis School of Law, complains of the Dobbs decision, “I felt horrible. The way Alito wrote the opinion felt like such a complete slap in the face. It felt disrespectful, insulting, indifferent to the views of a lot of people, almost mocking. For me, that made it a lot worse. I imagine there are a fair number of women who experienced it that way.” Alito’s methodical opinion, of course, was hardly the first Supreme Court opinion to dismantle the reasoning of a previous opinion. Lawyers aren’t supposed to take that sort of thing personally. Moreover, it is not the Court’s job, or even possible, to reach outcomes that everyone likes. If anything, the opening of the opinion showed Alito bending over backward to be sensitive to the popular emotional stakes of abortion:
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens.
Thinking like a lawyer also means being able to look at every argument from both sides. But neither Stern nor the people he interviews seem capable of doing this. For example, Stern tells us: “Increasingly, the conservative majority does not even bother to provide any reasoning for its decisions, exploiting the shadow docket to overhaul the law without a word of explanation. The crisis reached its zenith between September 2021 and June 2022, when the Supreme Court let Texas impose its vigilante abortion ban through the shadow docket, then abolished a 50-year-old right to bodily autonomy by overruling Roe v. Wade.” Follow along here. First, he complains that the Court declined to issue an emergency order in an abortion case without full briefing and argument — a case that it then added to the merits docket and threw out on standing grounds, thus making clear that it would have been acting without jurisdiction had it issued the order. He then connects this to Dobbs, in which the Court issued a 79-page ruling that reviewed the precedents so thoroughly that Professor Ziegler felt personally insulted by it.
Stern quotes Professor Mayeri saying she “will try to teach decisions like Dobbs ‘in broader contexts, such as the alarming global erosion of democracy’ and ‘the convergence of anti-democratic forces that enable the court to thwart majority will.’” Even leaving aside the question of what relevance any of this has to the proper interpretation of the United States Constitution, in order for Mayeri to cast Dobbs as “anti-democratic,” she has to completely mischaracterize the fact that it restored to the democratic process an issue that had been usurped by unelected judges for half a century.
These people are also hilariously lacking in self-awareness. Stern complains that the Court is “steering the court head-on into the most controversial debates of the day,” as if this is the first time the Court has issued opinions on matters such as abortion or race discrimination — then, he complains that the Court is insufficiently respectful to its own previous decisions on those very issues. He says, “Law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution?” But the entire point of the originalist argument is that the Court should not change the meaning of the Constitution — and that the decisions Stern and his interviewees venerate have done precisely that on many occasions. In fact, living constitutionalists such as Stern regularly argue that the Court is supposed to change the meaning of the Constitution with the times.
Stern even has the audacity to complain that changes in the law undermine the bar exam:
Perhaps the most famous facet of legal education is the bar exam, which . . . does not incorporate the Supreme Court’s most recent decisions. . . . That means exam takers must pretend U.S. law was static over the previous year, or risk answering questions incorrectly. . . . The more the law shifts in any given year, the more confusing the test. . . . Consider what this means for a student who took Constitutional Law in their first year of law school: The rights they learned are affirmed under the Constitution are no longer protected by the time they’re entering the field. Bar examiners, like law professors, need stability to test students’ knowledge.
Again: Was this a problem when the Court created out of whole cloth a right to same-sex marriage? When it constantly shifts the ground on when the death penalty can be applied? When it invents new areas of anti-discrimination law not found in the statutes? Stern tells us that “the problem, it’s worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree.” No, actually, that’s the entire problem. Not one of these people evinces any concern that the Court might do any of these things when it issues decisions they agree with.
Stern himself cannot even keep up the pretense. “For decades . . . the court has handed enough victories to both sides of the political spectrum that it has avoided a full-on academic revolt against its legitimacy.” Well, that’s it, isn’t it? The notion that the Court’s job is to give his side enough “victories” to keep them happy, regardless of what the Constitution says. And now, the Court is not giving them enough victories, so this feels as though it is siding with the baddies:
Since the 1950s, the legal academy has told a particular story about American law, one with clear heroes and villains. The Supreme Court was the hero, vindicating the Constitution’s grand guarantees of liberty and equality for all, abolishing segregation while guarding against authoritarianism. It was the great bastion of freedom, the protector of democracy, the champion of civil liberties, the pure and high-minded manifestation of our nation’s noblest values. Now, it is reshaping into an antagonist of many of those values, facilitating democratic backsliding while rolling back long-settled rights.
When you teach your students that the other side of the argument is the “villains,” of course, you’re not going to be able to get them to understand that side’s arguments — or, for that matter, learn how to present winning arguments to those judges. And yet, Stern and his subjects cannot even see their own biases:
Much of the legal academy does have a bias—it just isn’t of the liberal or conservative variety. Instead, law professors tend to have a profound trust in institutions, and process, and specifically the institution of the federal judiciary. This faith can limit the terms of the debate—in many ways, it already has. Many professors who personally lean left also cherish the courts and are aghast to see them exploited to promote a political agenda. . . . Many of the professors I spoke to for this article would not connect their personal political leanings to their reverence for the court. Or at least they wouldn’t have until recently.
Yes, when you depict an institution as delivering victories over your enemies, sometimes you don’t even see what you’re doing. Stern tells us that “the professors interviewed for this piece reported that, by and large, students on the right did not object to in-class editorializing.” Gee, I wonder why students might not tell their professors that? For people who love to lecture us on power dynamics, this is a complete mystery.
The Wider Meltdown
It’s not just Stern. There’s been a flood tide of this sort of commentary, just a few examples of which will suffice. Amanda Marcotte of Salon talks to Stern’s Slate colleague Dahlia Lithwick, who says of Dobbs that “I had this nightmare, but I didn’t know it was mine,” and says the decision “made a lot of people look around and say, how can an unelected juristocracy wreck my life if most of the population doesn’t want this?” — as if Roe v. Wade was a thing people voted on. The New York Times editorializes that “the court nearly always hews close to where the majority of the American people are,” as if this is preferable to hewing to what the American people have actually voted into law.
Justice Elena Kagan herself recently argued: “If there’s a new member of a court and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown, are being replaced, then people have a right to say: What’s going on there? That doesn’t seem very lawlike.” But Kagan told the Senate Judiciary committee in 2009:
Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.
Six years later, a 5–4 Court — supplemented by the addition of Kagan and Sonia Sotomayor — declared that there is such a right, and did so without even the pretense that the voters ever put that in the Constitution’s text.
Why They Can’t Lose Well
Why does the legal Left react this way to losing cases and losing the majority of the Court? Why is there so much emotional garment-rending? Why can they never fairly describe the arguments of the Court’s conservatives? Why can they not even handle it when the Court sends an issue back to the people? Why must defeats for the Left at the Court necessarily result in attacks on the Court’s legitimacy, personal smear campaigns against the justices, and even mob protests at the justices’ confirmation hearings and homes, and attempted assassination?
There are, I would posit, three related problems. The first is that the legal Left does not actually have an alternative theory of how to interpret the Constitution. The great virtue of originalism, even when it proves difficult to apply in practice, is that it has a firm foundation in democratic legitimacy. The people make the laws through their elected representatives, and courts give force to that democratic process by interpreting the laws as they were made until the people change them. The same theory binds together how courts read statutes and how they read the federal and state constitutions.
This is the entire point of written law. It was venerated by the Founding Fathers, who put a lot of effort into writing constitutions. George Washington himself warned, in his Farewell Address: “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” The inability of legal scholars on the left to explain how any other approach is democratically legitimate is why even Democrat-nominated justices now describe themselves in originalist vocabulary.
A conservative legal scholar, writing during the 1937–2015 period, could respond to the repeated bouts of lawlessness from the Supreme Court by invoking a better way of deciding cases more objectively rooted in written law. This was fundamentally an empirical task, even when deployed by people who passionately desired particular outcomes. It required advocates to discipline their emotions and study the law. You had to put in the work, not just emote.
That matters. It matters, first of all, to what upsets you. I do not like confiscatory income tax rates, but the 16th Amendment is pretty clear. I do not think that the law should recognize same-sex unions as marriages, but what irked me about Obergefell was not the policy outcome but the decision’s open contempt for written law and democratic self-governance. I thought the anti-Obamacare California v. Texas lawsuit was an amusingly clever idea, but I poured cold water on its throwing out the whole statute because it didn’t have a legal basis to do so. By contrast, I had no particular emotional investment in King v. Burwell when the case was first filed, but what infuriated me about the decision was that it disregarded settled ways of reading statutes and allowed an administrative agency to openly issue a regulation “regardless” of the statutory language.
The problem for legal progressives and liberals is that their ideas don’t work this way. To their credit, some left-leaning academics have put in the work of arguing for their preferred outcomes in originalist terms. But many others of the sort that Stern interviewed end up in an emotionally overwrought state because their ideas have no foundation other than the power to get their way.
Sooner or later, everyone on the legal left adopts some version of the constitutional nihilism of the legal realists, who argue that law is always just a mask for power. Various other coats of rhetorical paint are slapped over this conviction, but they amount to the same thing. Arguing for a “living Constitution” that evolves without amendments presupposes that somebody else besides the people holds the power to decide what in the Constitution lives, and what dies. Arguing, as the Times does, for rulings that follow “where the majority of the American people are” puts someone to the task of arbitrating the popular will without recourse to elections or the legislative process. Progressive theories of how particular “values” are supposed to animate the law — values such as equality, privacy, or sexual liberty — assume the power to put those values above others, unconstrained by the text.
Of course, some left-leaning academics have told themselves a story in which the highest value is institutions and precedent — but the underlying assumption is that the institutions will always be theirs, and so will the decisions about which precedents to follow. They never ask how those precedents got there, for example, by Franklin D. Roosevelt’s replacing eight members of the Court over his presidency, with the ninth resigning a month after his death. Some of Stern’s subjects talk as if they had never really asked themselves how the case law came to be the way it is:
“It’s hard to think about your own profession—the things you were taught, the things you believed in—abruptly coming to an end in rapid succession,” said . . . Jeffers. . . . “It’s hard to ask a law professor to dismantle all the training they had. It’s a difficult, emotional, psychological transformation process. It’s not easy to upend your life’s work and not trust the Supreme Court.”. . . For law professors, these rulings “have unsettled the foundational premises of our professional lives,” [Mayeri] told me.
Legal conservatives can fall back on deeper foundational premises because we have the Constitution itself as our guide. They don’t.
This leads to the second and third problems, each of which I have written about before in this context. The second problem is that progressives are so used to controlling our elite institutions that even a single one in the hands of conservatives not only enrages them but leaves them baffled. Institutions give credentials, which bestow the power to alter truth itself by appeal to authority. The professor gets to say what the right answer is. Progressive historians declare, “Historian here: let me tell you what History says.” Progressive scientists tell us, “I am the science.” Institutional power means never having to explain or justify your decisions by reference to objective reality. When you lose it after its long exercise, you lose a sense of who you are.
The third problem, which follows from control of the institutions, is that emotions are the currency of power in progressive-run institutions. Law professors and law students have grown accustomed to a language in which institutional power can be swayed by expressing disagreement with it in terms of emotional trauma. The more visibly upset you claim to be, the more it bends to your will. When they face a legal system that doesn’t care about your feelings, but cares instead about what the law is, they do not even know how to handle that.