The idea of “equal concern and respect," rather than particular grievances of any group, provides the moral foundation of identity politics today.
The late Ronald Dworkin might have seen last week’s arguments as a repudiation of his life’s work. His project was all about law (very loosely speaking) as a high-toned principle, imported with Herculean effort into open-ended rights guarantees. That pitch, hurled at the Court by the unlikely Olson-Boies team, ended up wide off the plate. Instead of grand rights claims, questions of constitutional structure took center stage: standing; federalism; justiciability.
That ought to be gratifying to those of us (including yours truly) who think that constitutional rights go with (rather than trump) the structure—no? Sort of. It’s certainly a relief that the demagogic “it’s just like interracial marriage” jazz fell flat. I wouldn’t hold my breath, though, for any serious judicial effort to understand, or even to begin to understand, “The Bill of Rights as a Constitution” (to borrow the title of Akhil Amar’s fine law review article). Rather, the structural considerations will be mobilized—and, so far as the litigants and amici are concerned, already have been mobilized—in the service of a vision that remains almost entirely rights-based.
I don’t mean to suggest that the standing and federalism questions are unserious or pretextual. For the most part, they are quite serious and on the merits quite difficult. I do suggest that virtually no one will believe that the arguments have any independent force, apart from their context and from the purposes for which they are being invoked or relied upon. The public won’t believe it, and the commentariat (and a large segment of the professoriat) has long gone legal-realist.
Everyone knows why the structure-and-jurisdiction stuff has come to dominate: it will help the Court—or at any rate some of its justices—to chart a path between Roe and Brown. On one hand, the justices don’t want to spark another round of culture warfare, akin to the result of Roe. On the other hand, they want to be on the right side of history, a la Brown. Structure is the way to temporize on the rights trump: stop short of the full-blown right (for now), but don’t put anything serious in its way. While at it, make some encouraging, progressive-sounding noises about a rising tide of tolerance, the genius of democracy, split atoms of sovereignty, etc. The constitutional vision remains Dworkinian at heart.
Can one say anything intelligent about that m.o.? Jack Balkin has called the right-side-of-history reasoning “Arguments from the Future” –a “new modality of constitutional argument,” he says. “Future” is certainly right, but everything else looks doubtful.
- New? As Jack himself acknowledges, Alex Bickel tagged the argument from the future—“The Idea of Progress”—as the key to Brown and Roe. So the “modality” has a pedigree, and it has since been brought to bear on sex discrimination, global warming, etc.
- Constitutional? As in, “It is emphatically the duty and the province of the Court to say which way the spirit is moving?” The only thing that’s constitutional about the idea-of-progress argument is that it has no constitutional reference point or limit, however attenuated.
- Argument? A “wherever this is going let me be slightly ahead” mode of judicial reasoning may be a Posnerian calculus to maximize long-term reputational gains (which may be complicated by an exogenous event called “death”), or it may satisfy some psychological need. But why do those sorts of calculations count as arguments?
Speaking of the future and argument, though: one would feel better about the struggle for marriage equality and the Supreme Court’s soon-to-come judicious quasi-embrace if the limits were more apparent. “This is all about the label,” Chief Justice Roberts challenged Ted Olson, inasmuch as nobody is proposing to wipe out California’s marriage-equivalent civil unions. “The label is very important,” Mr. Olson replied—with understatement: it is in fact all that matters. This isn’t about equality in the tangible, live-and-let-live, let-me-earn-my-keep sense Americans associate with the term. To borrow Professor Hegel’s term, it’s a struggle for recognition: you will give me my dignity and call this marriage.
That sort of demand is hard to contain. We’re all agreed, it seems, that religious arguments against public recognition are off limits (and no other arguments appear to be left). That being so, the demand to stamp out, de-legitimize, or ghetto-ize private disapproval can’t be far behind, and indeed it isn’t. (Ask the Boy Scouts.) Arresting that logic would require serious thought about the structure of a Constitution that befits a free society—and, along with thought, argument and (egad) conflict. We’re too busy and too nice for that. Most likely, we’ll work through future tensions with the only constitutional argument that seems to resonate: whatever.