The nomination of Brett Kavanaugh to the Supreme Court is on the knife’s edge. The stakes are higher than for the confirmation of any American judge in our lifetimes. For that reason alone, it is probably not a good time to stage a general debate whether and in what sense law is something more than politics by other means. But I would conduct it by separating out the sort of high stakes judicial appointments and decisionmaking that has attracted everyone’s interest in the past few weeks.
Low stakes judicial decisionmaking is inevitably political too, obviously. Generations of critical work has established that low stakes judicial process is shot through with politics, and generally helps reproduce illicit structures, especially through criminal and private law. But if that debate will always deserve to continue, one can legitimately conclude that high stakes judicial decisionmaking is different. That it is politics by other means is much more straightforward and undeniable, and the primary question is how progressives should think about it.
According high stakes decisionmaking to judges is most definitely not inevitable. The contingent situation of the United States (and, increasingly, elsewhere), where conservative and liberal elites jockey above all for the power of constitutional fiat the better to encode their policy views in fundamental law — saving themselves the trouble of popular approval and entrenching them against it — is not working well for progressives. Our response to Kavanaugh, especially if we cannot bring him down, is therefore to abandon all hope that the empowerment of the higher judiciary serves good outcomes, or even provides a bulwark against terrible ones.
People have argued the role of the Supreme Court in our society is “democratic” because judges are engaged responsively with citizenry. Supreme Court decisions drive political mobilization and vice versa. But a descriptive claim about the role of the Supreme Court in democratic politics is hardly a normative defense of that role in democratic terms. Indeed, it is strange use of “democratic” when you brand a defense the transfer of power to elites with that word. Anyway, to date the outcomes of America’s not-very-democratic constitutionalism are hardly very democratic substantively either. Bluntly, a progressive bet on the higher judiciary has generally been a failure – except insofar as it prompted the right to make its own much more successful bet, a conclusion that Kavanaugh’s elevation would render even more inescapable than progressives were willing to admit in prior decades of counterrevolution.
If our current version of judicial empowerment is not very democratic, is it defensible by some other means? It would indeed make a difference if we could distinguish the sort of arguments judges tend to give, pointing to their principled and rational basis or style. Courts are political, Amy Kapczynski acknowledges, and properly so. But they are nonetheless also fora of “universalizing” principle, where judges are constrained, whatever their feigned neutrality as if they were above politics, to give reasons for their conclusions.
I confess I don’t buy it. For one thing, the way in which courts are inevitably political may differ starkly between ordinary dispute resolution that all societies need to transfer to bureaucracies and American (and increasingly, global) constitutional law in which so much of democracy’s work has been transferred to an elite caste in our time — with liberal connivance. For another, Amy’s presentation leaves the impression she thinks that ordinary democratic politics is not also a forum of universalizing principle, albeit one where people takes more ownership over their premises and conclusions, rather than pretending that something called “constitutional law” is doing all the work. I worry that such assumptions reflect poorly on a progressive left that has risked giving up on offering reasons for our views to our fellow citizens, or even trying to figure out why they seem to vote so often for the other side.
If the Supreme Court is a forum of universalization where, in high stakes cases, legal reasoning is little more than a mask for ideological choice and minority rule, it is not clear how much a difference its principled rhetoric of decision should make to progressive observers. Whatever our general rationale for the way courts work when the stakes are low, I do not see how to embrace the outsized role of our constitutional judiciary simply because its members — after going to the right schools — have learned to talk the talk of legal justification. The fact that legal elites are elites and are trained to universalize their ideological preferences seems a strike against empowering judges in high stakes matters, not in favor of doing so.
This view has a host of consequences for how we teach and what we tell students to do. In the 1930s, Yale Law School – where Amy and I both teach (and where Brett Kavanaugh famously went) – was the ideological cockpit of the New Deal, where the intellectual goal was to defend the emerging progressive state against the interference of the judicial branch, and to help the legislative branch write its laws. Since the 1970s, the place has emphasized a judicialized liberalism. A cult of the higher judiciary suffuses the place — and many other law schools — in consequence. It is not by accident that students from the first day are taught to think of themselves as judges on the make, with clerkships the first rung in their climb, and to dream of achieving progressive consequences from above. If we taught less deference to courts — and how in high stakes politics the challenge is to convince our fellow citizens first and foremost — law schools would begin to look very different.
For parallel reasons, we should push back at those who indict our erosion of the law/politics distinction by telling them that not all erosions are created equal. In Hungary or Turkey, it may make sense to insist that constitutional or other judges are neutral players offering universalizing principle in the face of despots and mobs. Not that I am convinced that, when despots and mobs want to violate high principle, judges can stop them – whereas there is conclusive evidence that judges tend to act to support unjust arrangements, especially when it comes to the distributional politics this blog is about. Either way, it is just a non sequitur to argue that, simply because judges have failed to save liberal democracy elsewhere, the American cult of higher law and higher judiciary is more plausible.