Two words: Piss off.
Via Harvard professor Jack M. Balkin:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. (They might be reversed, but now there’s no guarantee.) And, we shouldn’t focus on the Court’s docket this year, which was shaped by conservative justices thinking that they could count to five on a bunch of cases. The docket will look quite different if they can’t see that path to five votes when they decide which cases to review.
What would abandoning defensive-crouch liberalism mean? (I’ve blogged about some of these points before.)
1 A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
2 The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
HT: Daily Kenn