Reactionary rhetoric and liberal legal academia

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2616-2642

  Driver, Justin ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 84902820127     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (159)

1. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 28 and 42 U.S.C. (2006)).
2. Id.201-07 (codified as amended at 42 U.S.C.2000a (2006)).
3. Sam Tanenhaus, Rand Paul and the Perils of Textbook Libertarianism, N.Y. TIMES, May 23, 2010, http://www.nytimes.com/2010/05/23/weekinreview/23tanenhaus.html.
4. Robert Gibbs, White House Press Sec'y (May 20, 2010), http://www.whitehouse.gov/photos-and-video/video/press-briefing-20100520#transcript.
5. Susan Davis, Rand Paul Taking Heat for Civil Rights Act Comments, WALL ST. J. (May 20, 2010, 8:44 AM), http://blogs.wsj.com/washwire/2010/05/20/rand-paul-taking-heat-for-civil-rights-act-comments.
6. Senator Paul's efforts in 2010 to extinguish the Title II controversy have not put the matter wholly to rest.
7. Sam Tanenhaus & Jim Rutenberg, Rand Paul's Mixed Inheritance, N.Y. TIMES, Jan. 26, 2014, http://www.nytimes.com/2014/01/26/us/politics/rand-pauls-mixed-inheritance.html (noting that Paul recently assured an audience that he had "never wavered" in supporting Title II).
8. 110 CONG. REC. 2786 (1963) (statement of Rep. Williams).
9. Justin Driver, Supremacies and the Southern Manifesto, 92 TEX. L. REV. 1053, 1084 (2014) (observing that during the post-Brown era even sophisticated opponents of school integration bolstered their arguments by citing allegedly high rates of illegitimacy and crime among black citizens).
10. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 6 (2014) (asserting that Senator Barry Goldwater launched a "frontal assault on the Civil Rights Act of 1964"). But, as will become apparent, Senator Goldwater's opposition was considerably more indirect than the "frontal assault" metaphor connotes.
11. ALBERT O. HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991).
12. JEREMY ADELMAN, WORLDLY PHILOSOPHER: THE ODYSSEY OF ALBERT O. HIRSCHMAN (2013).
13. HIRSCHMAN, supra note 12, at 7.
14. Law professors, particularly scholars of democratic politics, often cite Hirschman's best known book, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States.
15. Heather K. Gerken, Exit, Voice, and Disloyalty, 62 DUKE L.J. 1349, 1349 (2013)
16. James E. Fleming, The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution, 75 FORDHAM L. REV. 2885, 2913-16 (2007)
17. Adriaan Lanni & Adrian Vermeule, Precautionary Constitutionalism in Ancient Athens, 34 CARDOZO L. REV. 893, 904-09 (2013)
18. Sanford Levinson, Still Complacent After All These Years: Some Rumination on the Continuing Need for a "New Political Science," 89 B.U. L. REV. 409, 415-17 (2009)
19. Richard H. Pildes, The Theory of Political Competition, 85 VA. L. REV. 1605, 1611-12 (1999)
20. Adrian Vermeule, Does Commerce Clause Review Have Perverse Effects?, 46 VILL. L. REV. 1325, 1325-28 (2001)
21. Samuel R. Bagenstos, Has the Americans with Disabilities Act Reduced Employment for People with Disabilities?, 25 BERKELEY J. EMP. & LAB. L. 527, 559 (2004)
22. I suggest merely that law professors draw upon The Rhetoric of Reaction too infrequently. A Westlaw search suggests legal academics cite Exit, Voice, and Loyalty about eleven times more frequently than they cite The Rhetoric of Reaction.
23. HIRSCHMAN, supra note 12, at 11.
24. Id. at 3-8, 11.
25. Id. at 4.
26. Id. at 140.
27. Id. at 11 (emphasis omitted).
28. Id. at 36.
29. Id. at 12
30. id. at 76 (arguing that advocates of the perversity claim do not blame the reformers whose actions yield undesired consequences, but instead characterize them as "lacking ...in elementary understanding of the complex interactions of social and economic forces").
31. 24. Id. at 29
32. CHARLES MURRAY, LOSING GROUND: AMERICA'S SOCIAL POLICY, 1950-1980, at 9 (1984)).
33. See id. at 7, 43.
34. See id. at 76, 154.
35. Id. at 72.
36. See id. at 44.
37. See id. at 154
38. EDMUND BURKE, LETTER TO A MEMBER OF THE NATIONAL ASSEMBLY (1791), reprinted in 8 THE WRITINGS AND SPEECHES OF EDMUND BURKE: THE FRENCH REVOLUTION 1790-1794, at 332 (L.G. Mitchell ed., 1989).
39. For those few readers who possess an even poorer grasp of French than I have, the translation runs: The more things change, the more they stay the same.
40. See HIRSCHMAN, supra note 12, at 7, 84.
41. See id. at 84.
42. 33. See id. at 83. For legal scholarship examining slippery slope arguments
43. Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361 (1985)
44. Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026 (2003).
45. HIRSCHMAN, supra note 12, at 110-13.
46. FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM (1944).
47. HIRSCHMAN, supra note 12, at 7.
48. id. at 7-8 ("Nevertheless, the arguments are most typical of conservative attacks on existing or proposed progressive polices and their major protagonists have been conservative thinkers ....").
49. Id. at 166.
50. See id. (observing that "the arguments I have identified and reviewed are intellectually suspect on several counts").
51. For contemporary newspaper coverage of Goldwater's speech opposing Title II.
52. Anthony Lewis, The Courts Spurn Goldwater View, N.Y. TIMES, June 19, 1964, at 18 (contending that "[t]he constitutional argument made by Senator Barry Goldwater today in opposing the civil rights bill is one that stopped winning cases in the courts in the late nineteen-thirties")
53. Charles Mohr, Goldwater Says He'll Vote 'No' on the Rights Measure, N.Y. TIMES, June 19, 1964, at 1.
54. 110 CONG. REC. 14,318-19 (1964) (statement of Sen. Goldwater) ("I am unalterably opposed to discrimination or segregation on the basis of race, color, or creed, or on any other basis ....").
55. Id. at 14,319.
56. RICK PERLSTEIN, BEFORE THE STORM: BARRY GOLDWATER AND THE UNMAKING OF THE AMERICAN CONSENSUS 363 (Nation Books 2009) (2001).
57. William H. Rehnquist, Public Accommodations Law Passage Is Called "Mistake," ARIZ. REP. (Phoenix), June 4, 1964.
58. William H. Rehnquist and Lewis F. Powell, Jr.: Hearings Before the S. Comm. on the Judiciary, 92d Cong. 307 (1971) [hereinafter Rehnquist and Powell Nominations].
59. Id. at 305.
60. Id. at 307.
61. Robert Bork, Civil Rights-A Challenge, NEW REPUBLIC, Aug. 31, 1963, at 21, 22 (invoking the jeopardy thesis by contending proponents of public accommodations legislation elided the "cost in freedom" and the "loss in a vital area of personal liberty").
62. Robert H. Bork, Against the Bill, CHI. TRIB., Mar. 1, 1964, at 1.
63. A search of Westlaw's law review database turned up exactly one article that has cited Bork's Chicago Tribune piece.
64. William N. Eskridge, Jr., Noah's Curse: How Religion Often Conflates Status, Belief, and Conduct to Resist Antidiscrimination Norms, 45 GA. L. REV. 657, 675 n.92 (2011).
65. Bork, supra note 53, at 1.
66. Id. at 8.
67. "How could a court decide that the new constitutional requirement applies to a motion picture theater but not to a bowling alley, to a restaurant but not to a private club, to an inn-keeper or gas station operator but not to an accountant, a lawyer, or a doctor?").
68. HIRSCHMAN, supra note 12, at 45.
69. Id. at 62.
70. Bork, supra note 53, at 1.
71. Id. at 8.
72. Id. at 1.
73. Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 152-54 (1987).
74. Rehnquist and Powell Nominations, supra note 47, at 76-77, 156.
75. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 59 (1999).
76. Cass R. Sunstein, What Judge Bork Should Have Said, 23 CONN. L. REV. 205, 206 (1991).
77. SUNSTEIN, supra note 68, at 59.
78. JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA, at xii (2006).
79. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 287 (2009)
80. Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L. REV. 1, 46-55 (2007).
81. 408 U.S. 238 (1972).
82. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 379-82 (1985)
83. William N. Eskridge, Jr., Symposium, Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1279, 1312-13 (2005).
84. 410 U.S. 113 (1973).
85. Declining to mention Professor Michael Klarman's backlash thesis in the context of perversity arguments may seem like a glaring omission here.
86. Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. AM. HIST. 81 (1994).
87. Yet, his argument is an imperfect fit for the standard perversity narrative. Klarman certainly contends that Brown eliminated the space for racially moderate politicians in the South (the backlash portion of his argument). But he also contends that the charged atmosphere created by Brown led to violent racial confrontations during the 1960s, and that those confrontations, in turn, mobilized northern support for racially egalitarian legislation (the counter-backlash portion of the argument).
88. id. at 82.
89. Klarman, then, Brown did advance the struggle for racial equality, even if it did so indirectly.
90. Sunstein, supra note 69, at 206.
91. SUNSTEIN, supra note 68, at 59
92. CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 146 (1993)
93. FRIEDMAN, supra note 72, at 370.
94. See id. ("As must be certainly clear by now, this underlying assumption ...is deeply problematic.").
95. 347 U.S. 483 (1954)
96. GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 50-51 (1991) (contending that Brown achieved little desegregation)
97. L. A. Powe, Jr., The Supreme Court, Social Change, and Legal Scholarship, 44 STAN. L. REV. 1615, 1620-21 (1992) (same).
98. ROSENBERG, supra note 81, at 52.
99. Id. at 52-54.
100. 370 U.S. 421 (1962)
101. FRIEDMAN, supra note 72, at 266-67 (noting that many southern schools featured school-sponsored prayer even after the Court sought to invalidate such practices)
102. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 15-16 (1996) (same).
103. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
104. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 18 (2d ed. 1986) (calling judicial review a "deviant institution in the American democracy).
105. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153 (2002).
106. FRIEDMAN, supra note 72, at 375.
107. Justin Driver, The Consensus Constitution, 89 TEX. L. REV. 755, 792-93 (2011).
108. See supra text accompanying notes 16-38.
109. Lucas A. Powe, Jr., has written insightfully about the generational component of scholarly views on the Warren Court.
110. LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 500-01 (2000). Some of my own scholarship, I hasten to add, can be understood as participating in an intergenerational dialogue.
111. Driver, supra note 89
112. Justin Driver, The Constitutional Conservatism of the Warren Court, 100 CALIF. L. REV. 1101 (2012)
113. Justin Driver, The Significance of the Frontier in American Constitutional Law, 2011 SUP. CT. REV. 345 [hereinafter Driver, Significance of the Frontier].
114. I arrived at this point due to a helpful exchange that I had with Professor Rachel Harmon long before this piece was conceived.
115. HIRSCHMAN, supra note 12, at 11.
116. Id. at 11-12.
117. Sunstein, supra note 69, at 205 ("The Warren Court is dead.").
118. Cass R. Sunstein, The Spirit of the Laws, NEW REPUBLIC, Mar. 11, 1991, at 32, 36
119. ("From the standpoint of the 1990s, the [Warren] Court increasingly appears to be a historical anomaly, indeed an unprecedented exception to American political traditions: it was an adjudicative body willing to use the Constitution as an engine of social reform in the interest of civil rights and civil liberties.").
120. Driver, Significance of the Frontier, supra note 91, at 396-98 (suggesting the liberal academic veneration of precedent may be partially owed to strategic considerations).
121. HIRSCHMAN, supra note 12, at 7 (noting conditions for liberal usage of reactionary rhetoric).
122. Carol S. Steiker, Capital Punishment and Contingency, 125 HARV. L. REV. 760 (2012)
123. DAVID GARLAND, PECULIAR INSTITUTION: AMERICA'S DEATH PENALTY IN AN AGE OF ABOLITION (2010)).
124. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007)
125. Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 YALE L.J. 2028 (2011).
126. ACKERMAN, supra note 11, at 229-56 (contending that Brown defined the terms of the debate for the landmark civil rights statutes of the 1960s)
127. David J. Garrow, Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education, 80 VA. L. REV. 151, 152-55 (1994) (contending Brown boosted the civil rights movement). It may be tempting to conceive of Professor Bruce Ackerman's multivolume project We the People as part of the larger academic embrace of judicial skepticism
128. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991)
129. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998)
130. ACKERMAN, supra note 11.
131. ACKERMAN, supra note 11, at 229-56.
132. Randall L. Kennedy, Ackerman's Brown, 123 YALE L.J. 3064 (2014).
133. FRANK J. SORAUF, THE WALL OF SEPARATION: THE CONSTITUTIONAL POLITICS OF CHURCH AND STATE 297-99 (1976) (noting varying levels of compliance with Engel across the nation).
134. OLIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 270 (1920) ("We live by symbols ....").
135. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ("The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.").
136. 517 U.S. 620 (1996).
137. Jeffrey Rosen, Disoriented, NEW REPUBLIC, Oct. 23, 1995, at 24, 26.
138. Id. On the question of perversity, it is worth noting that there is no reason to believe Congress passed the Defense of Marriage of Act in response to Romer. Instead, the inciting incident for DOMA appears to have been the Hawaii Supreme Court's decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
139. Jane S. Schacter, The Other Same-Sex Marriage Debate, 84 CHI.-KENT L. REV. 379, 386 (2009) (linking DOMA's passage to the Hawaii opinion).
140. Rosen, supra note 106, at 26.
141. David A. Kaplan & Daniel Klaidman, A Battle, Not the War, NEWSWEEK, June 3, 1996, at 24, 26.
142. See id. (suggesting a technique to sidestep Romer).
143. Alexander M. Bickel, The Supreme Court 1960 Term-Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961).
144. Gerald Gunther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964).
145. Texas v. Johnson, 491 U.S. 397 (1989)
146. Loving v. Virginia, 388 U.S. 1 (1967)
147. Miranda v. Arizona, 384 U.S. 436 (1966)
148. Brown v. Bd. of Educ., 347 U.S. 483 (1954)
149. W. Va. Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943). For an argument (with particular attention to Brown and Loving) that the Supreme Court does not merely interpret the Constitution to impose consensus values on American society, but instead can effectively issue egalitarian opinions on divisive social matters.
150. Driver, supra note 89, at 758-59.
151. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Although the Court dodged Hollingsworth on standing grounds, the standing argument (for reasons too intricate to explain here) actually seems to have held more force in United States v. Windsor, 133 S. Ct. 2675 (2013), where the Court invalidated the Defense of Marriage Act. I discount, but do not wholly dismiss, the notion that jeopardy-based arguments drove the Court's non-decision in Hollingsworth because DOMA enjoyed a similar democratic imprimatur to the state prohibitions that exist throughout the country.
152. Press Release, ACLU et al., Make Change, Not Lawsuits 3 (May 27, 2009), http://www.aclu.org/files/pdfs/lgbt/make_change_20090527.pdf.
153. MICHAEL J. KLARMAN, FROM THE CLOSET TO THE ALTAR: COURTS, BACKLASH, AND THE STRUGGLE FOR SAME-SEX MARRIAGE 208 (2013) (acknowledging the importance of lawsuits in raising awareness of same-sex marriage).
154. HIRSCHMAN, supra note 12, at 78.
155. Here, I am exhibiting the hallmark liberal penchant for concentrating on the negative consequences of inaction.
156. HIRSCHMAN, supra note 12, at 152 ("Not that progressives would never advert to any problems. But they typically perceive the dangers of inaction, rather than those of action.").
157. For some of my own efforts on this front, see Driver, supra note 89, at 794-801
158. Justin Driver, Constitutional Outliers, 81 U. CHI. L. REV. (forthcoming 2014)
159. Justin Driver, Why Law Should Lead, NEW REPUBLIC, Apr. 8, 2010, at 28-32, http://www.newrepublic.com/article/books-and-arts/why-law-should-lead.