Further thoughts on the politics of law
By Since this post has occasioned much unhappiness, I’d like to respond to a few points.
(1) The primary defense for open-ended judicial review that deploys vague constitutional generalities (equal protection, substantive due process etc) appears to be that we’ve always done things this way and what about Brown v. Board of Education? As to the first point, as i mentioned in the original linked piece that’s the same argument from tradition that the Iowa AG used to defend the traditional definition of marriage. As to the second, no one ever seems to note that Brown didn’t do much of anything to desegregate schools in the US, let alone dismantle Jim Crow. The Civil Rights Act of 1964 was vastly more important in terms of actually accomplishing something beyond Brown’s almost purely symbolic function. The same could be said about a lot of other progressive political issues. On this see Gerald Rosenberg’s book The Hollow Hope.
A related claim is that aggressive judicial review isn’t going to go away, it’s certainly going to be exploited by the Right, so one might as well make hay when the sun shines. OK fine but that doesn’t mean one has to pretend the enterprise is intellectually respectable. To put it bluntly, nobody except a few law professors and other professional geeks cares how courts rationalize their decisions: what people care about are substantive political outcomes. So I see no point in pretending about what’s going on.
(2) The argument is made that if one thinks that multi-tiered means-ends scrutiny is basically a bunch of conclusory bullshit, this means you’re a legal nihilist. This makes about as much sense as claiming that if you don’t believe in unicorns you’re a biological nihilist. “The law” constrains judges and other legal actors in countless ways, sometimes a lot (no 17-year-old presidents, California doesn’t get five senators and so on). This isn’t because of some inherent quality of the legal materials, but rather because of the beliefs of legal and other political actors about what counts as a respectable legal argument — something that’s always changing to some extent. Substantive due process reasoning and equal protection arguments are currently quite open-ended in this regard.
(3) Bush v. Gore is a ridiculously transparent bit of circular question begging, but in this regard it isn’t any different than a lot of other SCOTUS opinions. It certainly isn’t any more absurd than, say, Roe v. Wade, which legal academics have been re-writing non-stop for the past 35 years to try to come up with a more respectable basis for their policy preferences in the guise of “constitutional law.” I’m deeply sorry if this offends peoples’ delicate sensibilities, but I can’t take any of that stuff seriously despite many years of trying. It’s all, to paraphrase Jeremy Bentham on The Universal Declaration of the Rights of Man, nonsense on stilts. What surprises me is that people who routinely mock metaphysical concepts when they come wrapped up in traditional theological guises fall all over themselves defending the supposed actual existence of “legal rights” and “constitutional principles,” and “binding precedents,” and all other manner of mysterious entities that make up that most mysterious of God substitutes, “the Rule of Law.”
(4) The arguments in the Iowa case all apply in spades to polygamy — except polygamy has been an extremely common social institutuion for thousands of years, and more to the point has been violently supressed by the US government, for reasons that had more to do with rank religious bigotry than with anything else. Now obviously there are other differences between polygamy and gay marriage. It could be claimed that polygamy is inherently oppressive of women. Of course this argument could be, and has been, made with considerable force about traditional marriage as well. Furthermore the oppressive quality of some existing polygamous marriages is no doubt exacerbated by their illegality — and indeed a big part of the argument for gay marriage has been that marriage is a bourgeois institution that will de-marginalize gay people who have been marginalized by their legal status. Some radical feminists have opposed gay marriage for that very reason. But all this is beside the point, which is that the question of whether society ought to bear the costs and enjoy the benefits of legal polygamy is a political question, the answer to which is not aided in the least by anything that can in any meaningful sense be considered legal reasoning.
(5) To return to the argument about Jim Crow, anti-miscegenation laws etc., the problem with such arguments, beyond the pragmatic point that judicial review actually did very little to get rid of these practices, is that the argument can be turned around. All sorts of intelligent educated people used to believe all sorts of things we now find horrifying. But unless you take the completely implausible position that changes in intellectual fashion are always for the better, there’s no particular reason to believe that at least some of our views, and more particularly some of the views of some of our judges, won’t be equally horrifying to all right-thinking people 50 years from now. Of course this will come as a deeply shocking assertion to people who believe that their views, unlike those of their benighted predecessors, are based on “reasoned judgment,” as opposed to unthinking prejudice. (And if you think this point of view makes sense, I suggest you think about it some more).