Thursday, June 02, 2005

The coming wingnut revolution -- Supreme Court Edition

Lawrence Tribe, the living embodiment of the juridical conventional wisdom, has decided not to publish the second half of the third edition of his famous textbook/synthesis, American Constitutional Law. Apparently Justice Stephen Breyer casually asked Tribe about the status of the book recently, and Tribe took the opportunity to write Breyer a 12-page letter explaining why he won't complete the next volume. A Legal Times article provides the background:

Tribe said he had made his decision because, as he told Breyer, "conflict over basic constitutional premises is today at a fever pitch," moving rapidly in unpredictable directions. "No treatise, in my sense of that term, can be true to this moment in our constitutional history -- to its conflicts, innovations and complexities."

Tribe implies that a mere catalog or hornbook reciting recent decisions might be achievable, even if rapidly outdated. But a treatise seeking to explain constitutional themes and pull together seemingly disparate doctrines can't be done now, Tribe asserts. "I do not have, nor do I believe I have seen, a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution."

Comparing the current turmoil to the beginning of Franklin D. Roosevelt's presidency in 1932, Tribe said, "attempting to proclaim a new synthesis would bespeak utter hubris were it not so manifestly quixotic." Tribe cited the current debate over the use of international law in Court decision making, renewed discussion of the "Constitution in Exile" movement, and sharp divisions over Establishment Clause doctrine as examples of flux in constitutional law. He also took a swipe at the "tragic" handling of the Terri Schiavo case by President George W. Bush and others, and conveyed a general discontent with the combative conservatism that he sees dominating the legal landscape.

In other words, Tribe expects that goal (and possibly the result) of the current wingnut effort to remake the judiciary will be to essentially throw out the concept of stare decis, i.e. the common law principle that judicial decisions should be based on precedent. Instead of precedent, politics and ideology will drive Supreme Court decisions. Obviously there's not much point in publishing a book on the history of legal precedents, if legal precedents aren't going to form the basis for the legal decision-making process.

Jack Balkin explains why we should care:

For many years, Tribe has been a key exponent and defender of a liberal synthesis of the constitutional law created by the Warren and Burger Courts. Because Tribe has seen his job as synthesizing and reconstructing the larger themes of constitutional law as it actually exists, several of his positions have changed over the years as the Supreme Court (and existing doctrine) have become more conservative. Yet at the same time, the Rehnquist Court has pushed the liberal civil rights agenda in ways that the Warren and Burger Courts never did, for example, in the area of gay rights. Hence, until this moment, Tribe has worked on the assumption that the Supreme Court, even if it has not decided every issue in the ways he would prefer, has been working within the basic paradigms of reasoning established by the Warren and Burger Courts. Apparently, Tribe now believes that this may no longer be the case, and that a Supreme Court stocked with new Bush appointees will shift constitutional doctrine in important new directions. Perhaps equally important, Tribe appears to believe that the new Court will shift doctrine in directions that will make his synthesis of existing doctrine outmoded or irrelevant.

Whether or not he turns out to have been correct, Tribe's decision to suspend his treatise marks an important moment in American constitutional scholarship. It is important not simply because Tribe and his treatise are important, but because Tribe has symbolized the liberal establishment in American constitutional law for many years, and because, as a seasoned litigator, he is as good a judge of future trends as anyone else in the country. When Larry Tribe says that a paradigm shift may be on the way, it is worth sitting up and taking notice.

I cannot think of a scholarly decision of similar symbolic importance.

And if you think that there's going to be anything remotely "conservative" about this legal revolution, you're wrong.

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