Judicial Conservatism and Legal Indeterminacy

I’m a little puzzled by this Sasha Volokh post, in which he cites an article by Mike Seidman pointing out that the indeterminate nature of legal materials has produced conservative results as the federal courts have become dominated by Republican appointments and then uses it as a “gotcha” against CLS scholars, warning them that “progressives who, in the name of indeterminacy, try to undermine rule-of-law norms, will find this biting them back in the end.” If Volokh thinks that this would be remotely surprising to the crits, however, he doesn’t understand their work. First, the indeterminacy thesis is an empirical one, and as both Volokh and Seidman seem to concede, the federal judiciary under the Bush administration has provided powerful evidence for it. I’m not inclined to agree with the strongest versions of the crit/realist argument, but as Mark Tushnet (the most important CLS scholar) has pointed out, Bush v. Gore “seems to have let critical legal studies arise like Lazarus from the grave.” One would have to be incredibly naive to believe that the law would not have taken a more conservative turn had only some academics not made arguments about legal indeterminacy in obscure law review articles. Secondly, one can disagree with CLS scholars on any number of points, but one thing you certainly can’t accuse them of is being unaware that legal indeterminacy can work to reactionary purposes. Indeed, the whole point of a lot of CLS scholarship is that the indeterminacy of legal principles served powerful interests and obstructed progressive social change. Despite my disagreements with CLS scholars one useful thing about the critical literature is that it serves as a reminder about how anomalous the Warren Court was in American history; people who expect the federal judiciary to reliably stand up for the rights of unpopular minorities against the powerful are likely to be disappointed more often than not.