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Radicals in (Professorial) Robes

UPDATE: Edited to spell Prof. Sunstein's name right. I always overgenerous, adding an extra "n" in his name.

Over at Concurring Opinions, Prof. Eric Muller has gotten "steamed" (his words) at right-wing pundits insisting that "federal courts are in the grips of 'loony leftists,'" and wonders Where Is The Academic Truth Squad?. The very word "truth squad" sets my teeth on edge, suggesting as it does a cadre of inquisitors armed with infallible writ. But Prof. Muller's point seems to be that left-wing professors have stuck to writing law review articles and are not engaging with popular opinion. Thus, popular opinion holds the "false" view that courts are run by the lunatic left:

The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. . . . We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public.

As Will Baude correctly points out in the comments, Muller's complaint seems empirically suspicious. Liberal law professors write outside the shackles of law reviews and show up on the air waves. And if Cass Sunstein's anything to go by, they've got their own batch of distortions. (Sunstein: we Snidely Whiplash Conservatives have to have our "veil of extremism" ripped off, and amongst ourselves mutter about restoring a Constitution in Exile.)

On the other hand, Prof. Muller's right on two points. First, the judiciary, however left-leaning it may or may not be, is not full of "loony leftists." Secondly, the narrative of Muller's Truth Squad has hardly captured the imagination of the American people, although there is a vocal literature.

Why would this be? For one thing, the left-wing "loons" have some actual, tangible victories on their side. States may no longer criminalize homosexuality, nor may they execute those below eighteen. A state constitutional amendment as to homosexuality can be struck down (so long as it's a matter of bare "animus," whatever that means). The state can confiscate property from one individual and sell it to a developer if it's economically more valuable. And of course, despite the chorus that have been screeching that abortion is "under threat" since the day I was born, women are still walking to the clinics.

Compare that with Sunstein's "Radicals in Robes." At the height of the Rehnquist Court, Roe was replaced with . . . Casey. Two of the "revolutionary" Commerce Clause cases, Lopez and Morrison, indeed invalidated small parts of acts of Congressional excess. But some provisions of those laws have been reinstated by Congress (with a bit more connection between the target activity and "commerce") and in any event there has been no move to broadly legalize beating up women or carrying guns into schools. It's enlightening that in a recent debate, Sunstein mentions barely any practical, enforceable victories by his "radicals." Instead he peppers Prof. Bernstein with the hoary question of whether he believes--as the "radicals" supposedly do--that the U.S. government should be able to discriminate on the basis of race or sex.

Grant Sunstein his argument: suppose I do believe the Feds should be able to prefer women in hiring over men. The idea that Congress may be constitutionally capable doesn't mean they should. And as a practical matter in 2006, it's highly unlikely that they'll be able to do so, nor that I'd vote for them to do so.

And thus the Loony Leftists meme has more legs than Muller's Truth Squad. The first narrative has some real drama, some actual meat to it. People may or may not do things based upon the words of the "Loons," as it were. The "Radicals" stuff is mostly phantasms and ghost stories.

Procedural niceties and theories of interpretation mean something to law school professors and die-hard originalists, but most of the "popular" culture is worried with pragmatic concerns. Is abortion legal, or can we ban it? Must we recognize gay marriage, or may we not? At that level the judiciary is radically to the left. Moreover, the rising tide of "right wing" jurists seems comfortably far away. I'll be quite happy to be the first against the wall when Sunstein's revolution comes. May I live so long.


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