In addition to an excellent exchange my excellent book, balkinization has many other excellent things—such as yesterday’s post by Mark Graber. It suggests that the Supreme Court is reverting to the posture of a century ago, but not in the way “all of us”—meaning, progressive law profs—had been expecting. Here’s Mark’s opening:
[T]he conservative majority is reverting to judicial practices before the New Deal, but not in the way many commentators expected. The justices are not restoring ancient doctrinal categories or dramatically cutting back on civil liberties. Rather, as was the case in 1915ish, the big winner is business. When business is not involved, the judicial majority is often at least as liberal if not slightly more liberal than the rest of the ruling regime.
And here the conclusion:
[A]ll of us spend too much time on grand constitutional law, where we have been waiting for the conservative apocalypse that has never occurred. Business enterprise either has little stake in such issues as abortion, same-sex marriage or affirmative action or actually may lean somewhat in favor. In a time of legislative gridlock, the real action is in statutory interpretation, preemption and administrative law and here, largely out of the public’s eye, is where the conservative revolution in law goes on apace.
Prediction: the coming weeks will bring incessant rants about the Supreme Court’s “pro-business” and anti-civil-rights bias. Further prediction: much of it will zero in on Justice Alito. The hyperventilation about his “eye-rolling” at Justice Ginsburg—I’ll spare you the links—are only the opening salvo.
Good luck: Justice Alito isn’t easily intimidated. And if he is a misogynist at heart, he has a very funny way of practicing his faith. I occasionally bump into him at the local supermarket—confused males, in a sea of confident suburban ladies who know what they’re looking for and what distinguishes a detergent from a dishwashing gizmo. (Us? Wandering and wondering. Me, at least I write my own shopping list.)
Back from I-need-a-cleanup-in-aisle-seven to ConLaw: Mark Graber has a real point, and he raises a set of terrific questions.
Point: All the “real action” is below the “grand” ConLaw stuff. What recent treatise does this remind us of? Thank you.
Questions: Can the Court really sustain a “conservative revolution” below the radar—or does it, would it eventually need a theory that’s plausible both at a constitutional and at a public level? And, could it be that the “1915ish” Court, unwilling to confront the positivists’ snazz, eventually lost because it looked liked nothing but pro-business?
To borrow a phrase from a dear lawyer-friend: I yield to no one in my embrace of underhanded quasi-constitutional doctrines. Eventually, though, you have to be clear about the Constitution you’re borrowing from or riffing off. And Mark is right: this has gone quite far. It’s beginning to be a problem for progressives and for their foes (in different ways)—and for the Court.