In his latest book Why the Constitution Matters, Mark Tushnet (William Nelson Cromwell Professor of Law, Harvard University) argues that the Constitution matters not because it enshrines certain “fundamental rights” enforced by the Supreme Court against majoritarian interference, but rather because the document creates political institutions that shape both the content of constitutional law (including fundamental rights) and how those rights get enforced.  As he writes in the Introduction, “the Constitution matters because political parties matter, and the Constitution has some influence on the way parties operate” (p. 13).  Hermetically separating law and politics is not only impossible, Tushnet argues, it is normatively undesirable.

Much of Chapter 1 discusses the ways that our [...]]]> Why the Constitution Matters. By Mark Tushnet. Yale University Press. 2010.  Pp. 187. $25.00.

In his latest book Why the Constitution Matters, Mark Tushnet (William Nelson Cromwell Professor of Law, Harvard University) argues that the Constitution matters not because it enshrines certain “fundamental rights” enforced by the Supreme Court against majoritarian interference, but rather because the document creates political institutions that shape both the content of constitutional law (including fundamental rights) and how those rights get enforced.  As he writes in the Introduction, “the Constitution matters because political parties matter, and the Constitution has some influence on the way parties operate” (p. 13).  Hermetically separating law and politics is not only impossible, Tushnet argues, it is normatively undesirable.

Much of Chapter 1 discusses the ways that our Constitution’s structure made possible, then entrenched, the contemporary two-party system.  Separation of powers, for example, created the possibility of divided government.  Because structural features like separation of powers and federalism impact both party organization and whether government is divided, both are ultimately important to “constitutional law,” broadly denominated.  (There is an irony, of course, in this: the Constitution contains no mention of parties and the Framers in fact tried to forestall their creation through these very structural mechanisms.)  As time went by, Tushnet argues, highly localized parties that were really coalitions began to develop more or less coherent ideologies.  For presidents, this coherence means that unified government offers the President tremendous opportunity to achieve policy goals, while divided government (and term limits) can frustrate presidential ambitions.  This is a relatively new phenomenon; historically, when parties were coalitions, we usually had “essentially divided government,” with the President having to work with ideologically-compatible members of both parties (p. 40).

Tushnet is largely silent about constitutional law (as opposed to constitutional structure) until the end of Chapter 1, when he speculates that the Supreme Court’s application of the First Amendment to campaign finance reforms might have had some meaningful effect on these political developments.  Ultimately, he’s skeptical.  In the absence of the Court’s decisions, he argues, we’d probably have ended up at about the same place.  As he argues in Chapter 2, the Court “interprets the Constitution the way it does because it too is both a part and the result of our political system” (p. 91).  He continues: “Put politicians in charge of campaign finance and they’ll enact laws that reinforce the existing structure of politics.  Put judges in charge and they’ll interpret the Constitution to—aha!—reinforce the existing structure of politics” (p. 92).

Thus, the message of Tushnet’s first chapter is that the Constitution matters because it creates a governmental structure that has incubated a particular two-party political culture.  This political culture, in turn, influences the Constitution’s interpretation, not least because the interpreter-in-chief of that Constitution—the Supreme Court—“is both a part and the result of our political system. . . . [W]e can expect the Court’s interpretations to reinforce the constitutional positions most consistent with those of the then-dominant political regime” (p. 91).

That last suggestion—that the Court is both a political and a legal institution—is at odds with our national mythology that surrounds the Court.  It will probably strike a number of readers as downright heretical.  But Tushnet presses on in Chapter 2, arguing that the Court’s politics have patterns “connected to the ideas about regimes, presidential leadership, political parties, and divided or unified government” that “help make sense . . . of the Court’s history” (p. 94).

Consider cases like Brown or Griswold.  In both, Tushnet argues, the Court forced outliers to comply with national constitutional norms, thus helping politicians “do things the politicians themselves [couldn’t] do even though the politicians might [have wanted] to do them” (p. 97).  Why would courts willingly assist politicians this way?  Tushnet argues that it isn’t a conscious choice on the part of the Court; rather it is the end product of the judicial nomination process.  “[T]he judicial selection process is political to the core,” he writes.  “Presidents pick nominees to satisfy political demands on them, and senators vote to support or oppose confirmation to satisfy the sometimes different political demands they face” (p.106).

The upshot is that in the context of a particular political regime with “basic commitments to a vision of what our nation’s policies should be” president select justices who’ll uphold those concepts (pp. 116-17).  And the Justices usually oblige.  “When things work well,” Tushnet observes, “the justices simply interpret the Constitution as they understand it—which is how the president wanted them to understand it” (p. 118).  Seen from that perspective, “justices are entirely sincere in saying they are doing no more than interpreting the Constitution and that they pay no attention to politics” (p. 118).  They don’t need to, according to Tushnet, because politics is already baked into the process.

Alas, things don’t always go well.  For example, a Court representing an old regime can clash with a reconstructive president (think FDR and the pre-1937 Court) or an out-of-touch Court can accelerate the decline of an already-dying regime (think the Warren Court and LBJ’s Great Society).  Moreover, politicians sometimes fling thorny, coalition-dissolving problems into the Court for a judicial resolution.  While sometimes peace is achieved in the short term, the Court isn’t very good at settling fundamental political disagreements, which can erupt later, sometimes with disastrous long-term consequences (think slavery and Dred Scott or abortion and Roe).

But if the Court simply represents or reflects the political culture extant when a Justice is confirmed, what explains change in the law during periods of time when Court membership is relatively stable?  Tushnet considers and discards one popular explanation—that justices “grow” in office through personal experience.  It is more likely, he posits, that justices’ views come as a loosely-connected package.  The appointing president may be interested in only a small number of (perhaps even a single) item in that package.  Most nominees have had little time or inclination to think through the myriad legal issues they might be called upon to consider.  Moreover, issues change over time and “[j]udges . . . have to figure out how their old ideas apply to the new problems . . .” (p. 134).  Issues may change, for example, through the work of social movements.  If durable, “political elites take notice” (p. 144), including those on the Court.  He concludes:

To understand how the Supreme Court matters, pay attention to what kind of president we have (reconstructive, affiliated, preemptive), whether the president is part of a constitutional regime that is resilient or declining, how long the justices on the Supreme Court have been there and who appointed them, whether the national government is divided or unified, whether (or the degree to which) our political parties are coalitions of disparate groups or are ideologically homogeneous, and whether there’s some social movement that seems important even though it hasn’t yet achieved any real electoral success.  Once you do that, you’ll have as good a sense of what fundamental rights the Supreme Court is going to enforce as any scholar who specializes in studying the Constitution and the Court.

(p. 150).  The added bonus is that “you won’t have to worry too much about the details of the constitutional doctrines that drive the Court’s decisions from the inside” (Id.)

Tushnet’s final chapter seems addressed to those who feel unrepresented by either political party and thus find themselves consistently “losing” in both the political and judicial arenas.  In that position, “[y]ou might end up thinking that you’re losing so often because our political structure is stacked against you” (p. 155).  He surveys some proposals for fundamental constitutional change put forward by Sanford Levinson and Larry Sabato, but concludes that to change the Constitution one need only become politically active—even on a very small scale—elect people who share your vision and wait for the Court (and the Constitution) to catch up (p.173).

Tushnet believes that “bringing politics to the fore will actually improve the constitutional discussions we have when we talk about a recent Supreme Court decision or consider a nomination to the Supreme Court” (p. 151).  By acknowledging the role politics plays, he says, we can both demystify the Court and its role and accept that reasonable people can differ about the issues coming before the Court—that it is possible to disagree about Supreme Court decisional outcomes without assuming intellectual disability or bad faith on the part of those with whom you disagree.  “My complicated description of perceiving the Court’s decisions about fundamental rights as arising out of politics,” he writes, “allows us to treat our disagreements about fundamental rights as political too” (p. 153-54).

Perhaps.  But we ought carefully to consider the costs of erasing the line between law and politics, even if that line is blurred more than popular accounts would have it.  If the Court is little more than a collection of politicians in black robes, then life tenure—or judicial review itself—becomes hard to defend.  In fact, it seems silly to staff such a body exclusively with lawyers and judges; there is no reason to think that lawyers have any particular comparative advantage in deciding cases involving the burning politico-legal issues of the day if law is simply a handmaiden to politics.

Moreover, it is unlikely that everyone would be as charitable as Tushnet, acknowledging that one’s own preferred outcomes were as much the product of these larger political forces as the outcomes one disliked.  I suspect that many would still decry the latter as the result of “judicial activism,” in contrast to the principled, law-driven decisions that reached the “right” result.  Tushnet actually concedes this late in the book, writing that the evidence from his own teaching is “not that encouraging.  My students will generally nod in agreement when I describe disagreements about what our fundamental rights are as reasonable—as long as I make the statements completely in the abstract” (p. 154).  He laments that “I’m afraid that I haven’t figured out how to help my students appreciate why treating constitutional interpretation as a form of politics is actually good for us” (Id.).  Coming from someone as smart as Mark Tushnet about students as bright as those at the Harvard Law School, this is quite an admission, and ought to serve as a warning.

Consider, too, the fact that the Court sits atop a judicial hierarchy.  Lower federal courts, and state courts, too, are bound by its decisions.  What are those judges to make of a Supreme Court whose decisions result not from a felt obligation to engage in a good-faith application of binding law, but instead are a complicated product of presidential ambition, regime politics, political culture, and social movements?  Does such a body even merit the name “Court”?  How are the Court’s decisions to be applied to future cases?  How are they to guide policymakers?

***

Tushnet writes in the Introduction that “almost everything I say here is the conventional wisdom among scholars—even legal scholars—who study the Constitution . . .” (p. 17).  I’m not so sure.  If it were, then what explains justices, judges, and practicing lawyers, not to mention the scores of academics producing thousands of pages of constitutional law scholarship annually, who more or less takes the Court seriously, analyzing and critiquing its decisions as if “law”—rules, doctrines, standards—mattered?  If it’s politics all the way down, then these folks are not only spending their time unprofitably, we might say that they are in the throes of a false consciousness or victims of mass delusion.

Or perhaps they’re just looking at constitutional law from something like Hart’s internal point of view.  If Tushnet is right, and political influences are inescapable, then maybe we’re better off ignoring them.  Instead, let’s have debates about the Court and its interpretive methodology, respect for precedent, and appropriate standards of review, leaving to the historians the larger, external explanations for the actions of its members.  Embracing the politicized alternative offered by Tushnet and others might end up being self-fulfilling.  The Court would likely descend to meet our low expectations.  The more “political” it became, the more likely it is that the reservoir of goodwill enjoyed by the Court would evaporate and be refilled with the contempt that people express for our other political institutions.

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Brannon P. Denning is a professor at Cumberland School of Law, Samford University.  He wishes to thank Ben Barton and Glenn Reynolds for helpful comments.

Book Review

“Hey! Teachers! Leave Them Kids Alone”

Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre.  Cambridge: Harvard Univ. Press. 2009.  Pp. 289.  $29.95.

Reviewed by Brannon P. Denning*

U.S. public schools regularly find themselves sued by students alleging violations of their First Amendment rights.  The scope of public school students’ free speech rights is notoriously unclear, and the proliferation of technologies that both make communication possible as well as blur the on-campus/off-campus line, moreover, make these cases increasingly difficult.  Courts and administrators often struggle to balance students’ speech rights with the need to maintain order and safety in public schools.

 University of Georgia law professor Anne Proffitt Dupre’s new book, Speaking Up: The Unintended Costs [...]]]>

I think cell phones and Blackberrys have replaced cigarettes as our response to these sorts of unanticipated waits. One sign that talking and texting may be the new [...]]]> It is a commonplace to note the degree to which technology enables us to stay “connected” to family, work, etc. What I find fascinating is not only how common it is to see folks talking and texting, but how many people instinctively reach for their phone and begin talking, texting, or both when faced with any sort of enforced idleness. It reminds me a bit of Brian Doyle-Murray’s character in Christmas Vacation when he doesn’t want Clark Griswold in his office anymore. He picks up the phone and growls, “Get me somebody. Anybody.”

I think cell phones and Blackberrys have replaced cigarettes as our response to these sorts of unanticipated waits. One sign that talking and texting may be the new smoking: signs asking folks to turn off their cell phones before entering places like doctor’s offices.

Don has written a wonderful essay about the trial, and his role in it, entitled Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church, 12 Mich. J. Race & L. 1 (2006) (I can’t [...]]]> Yesterday’s conviction of a former Klan member in the previously unsolved killings of two teens in the 1960s is the latest in what seems to be a series of attempts to crack cold cases from the civil rights era before even more witnesses and suspects die off. My colleague at Cumberland, Don Cochran, was part of the prosecution team that secured the conviction of Bobby Frank Cherry, who was involved in the bombing of the Sixteenth Street Baptist Church here in Birmingham.

Don has written a wonderful essay about the trial, and his role in it, entitled Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church, 12 Mich. J. Race & L. 1 (2006) (I can’t find a copy online). In the conclusion, Don posits that the Cherry trial, and civil rights trials in general can be understood as a form of “transitional justice,” a term taken from international law describing the processes (trials, lustration, truth commisssions, etc.) by which regimes transitioning from authoritarian to democratic governments attempt to expose, and come to terms with, the past. I think that the concept of transitional justice is a fascinating lens through which to view these trials, and I think it can help furnish an answer to the question Don says he frequently gets: “What is the use of trying and convicting these old men decades after these crimes have been committed?”

Many comments asked what the chances are for someone who attended a non-elite law school to break into the teaching market. Since that seemed to be a common theme, I thought I’d offer “Becoming a Law Professor: The Nutshell.”

The answer is: [...]]]> First, thanks so much to everyone who made comments to my previous post, which asked for things you’d like to see in a book about the faculty hiring process. I’m knee-deep in summer school, so while I can’t respond individually to each comment, please know that I appreciate each one and all will be helpful as we continue writing the book. I am pleased to see that we have, so far, anticipated many of the topics that you wanted to see covered.

Many comments asked what the chances are for someone who attended a non-elite law school to break into the teaching market. Since that seemed to be a common theme, I thought I’d offer “Becoming a Law Professor: The Nutshell.”

The answer is: write, write, and write some more.

I think you should write and publish something (maybe a couple of things) after graduation from law school, when no one is making you. This will do several things: (i) give you an opportunity to see whether you like writing; because, as Brad Wendel says, this is a writing job more than a teaching job; (ii) will make you competitive for the Ivy League LL.M. programs that will allow you to (as I did) launder your non-elite law school degree; (iii) finally, it will send a strong signal of commitment to prospective employers. Let me take these one at a time.

Can I “Do” Legal Scholarship?– If you don’t like writing, even if you get a job, it will feel like a prison sentence. You need to figure out whether this is something you could make yourself do day-in-day-out at least until you receive tenure. If you find that you would rather have dental surgery rather than write the introduction to your article or go to the library to research a topic, then a tenure-track academic job is not for you. If you really feel a call to teach, but not to write, you might think of teaching as an adjuct or in a clinical position (though the latter often have to write if they are tenure-track).

Writing to Gain LL.M. Admission–For non-elite J.D. laundering purposes, the most prestigious LL.M. programs are Yale, Harvard, and Columbia’s. All are extremely competitive for U.S. students; all claim to admit only those applicants who demonstrate a commitment to becoming a law professor and have good chance of succeeding on the job market. You can take a blood oath in your personal statement that you’re going to be the second coming of [insert name of prominent academic here], but, ultimately, talk is cheap. The best way to demonstrate a commitment to the business is to write articles and publish them, not merely talk about your intention to do so.

Writing to Gain Employment–The same is true for prospective employers. Jobs are scarce, and the effects of hiring someone who doesn’t meet potential can be devestating. Therefore, more and more schools are expecting to see proof of a commitment to scholarship on the front end.

Now you might be thinking that this advice–”Write!”–is like the joke about the shipwrecked economist (“First, assume the existence of a can opener.”). Well, it is, in a way, but next week, I’ll post a couple of hints to help you get started on that first writing project.

We have several chapters written, but I thought I’d take this month’s opportunity to ask readers who are interested in becoming law professors and law professors who care [...]]]> Okay, I’m back. [You were gone?--ed] I had to run home for the weekend to dogsit, while the rest of my family was out of town. One of my projects this summer is to keep working on a book that my colleague, Marcia McCormick, and I are writing together: a guide for those who want to be law professors. Our intent is to write a soup-to-nuts guide, covering what law professors do, describing the job search process, the call-back, negotiating the offer, down to what to do if you don’t succeed at first.

We have several chapters written, but I thought I’d take this month’s opportunity to ask readers who are interested in becoming law professors and law professors who care to give the matter some thought, “What would you like to see in a book like this?” What information do you have now that you wish you had when you starting thinking about jumping into this business? Feel free to leave suggestions in the comments, or e-mail me directly bpdennin at samford.edu.

1. Prepare for Classes Early and Often—Here’s something they don’t talk about much at the AALS Faculty Recruitment Conference: teaching is hard and class preparation is time consuming. Much of [...]]]> Last summer, I had fun offering a few pieces of advice to incoming law students. I thought that I’d give some thought to advice for new law professors. As I look back, there really wasn’t much to go on; my first job was teaching in a school that had not made a new hire in several years. Consequently, I had to learn by making mistakes, and I made a lot of them! So, here are a few things I thought of; I may add to the list throughout the month.

1. Prepare for Classes Early and Often—Here’s something they don’t talk about much at the AALS Faculty Recruitment Conference: teaching is hard and class preparation is time consuming. Much of the discussion about being a law professor concerns the publication side of our business. What are you working on? Where is it being published? Have you had luck trading up? Compared to preparing for and teaching those first classes, though, researching and writing is a breeze. I had no idea how much time it would take simply to prepare for class each day, nor was I prepared for how miserably I felt I was failing during those first few weeks—and in the subject (con law) that I knew well and couldn’t wait to teach! Knowing that I had two additional classes to prepare for and teach that I didn’t know as well made for a decidedly Un-Merry Christmas. Spend lots of time preparing for class this summer, but know that you will still that it wasn’t enough.

2. Remember that your first year teaching is like a first draft—But I don’t mean to be a downer. You should allow yourself to experiment, to make mistakes, to change things up mid-semester if things aren’t working. After all, the first draft of the first article you ever wrote wasn’t perfect, was it? Of course not. So you should regard your first year teaching—your first couple of years, in fact—as rough drafts. Moreover, involve your students in the process. Ask them what is working, and what is not. My experience is that students are very understanding, and will do what they can to aid new professors adjust to the classroom and to the experience. By year three, as J.B. Ruhl told me, you will see why being a law professor is a “loophole in life.”

3. Try to get the first article done quickly—Many new professors will already come with publications, but there’s something a little intimidating about writing that first article as a professor. You feel like it has to be a little better, a little more insightful, place a little better than the articles you sent out six months ago. Sometimes this reticence can turn into paralysis or panic as pre-tenure review (or tenure) approaches. Try to get a draft of something done this summer—even a small piece, an essay or a book review, something. While if you follow my class preparation advice, above, you’ll have plenty to fill your days, you (and your colleagues) will breathe a sigh of relief if you get that first piece out as a member of the faculty.

4. Avoid Entangling Alliances—As my colleague Marcia McCormick has observed, joining a faculty is a lot like joining or marrying into a family. It will take you a while to sort out personalities. What you do not want to do during your first few months, is to allow yourself to be enlisted by senior faculty on either side of any contentious faculty issue. Even senior faculty who ought to know better sometimes cannot help themselves when it comes to faculty politics. Enlist on the wrong side, offend the wrong faculty member, and grudges might be held, friendship withdrawn, etc. You have so much to worry about with classes, making up with the offended gray eminence who no longer says hello to you in the hall is a stressor that you’re better off without. There is definitely a time (even as a junior faculty member) for speaking your mind and offering your opinion, even at the risk of offending your colleagues, but your first year on the job is usually not that time.

5. Memorize Students’ Names—It means so much to students for their professors to acknowledge them by name. I cut out pictures of students from our facebook and paste them on an index card that has their name on the other side. When I have a few moments, I practice memorizing their names. For whatever reason, memorizing names is not a strength of mine, so I have to spend time on this. It often takes me until the second semester for names to stick. I think the students appreciate the extra effort, though.