Monday, June 13, 2011

Obama's Judicial Philosphy: Tribe v. Sunstein

A new argument about his legal philosophy—and its troubling consequences.

Justin Driver /June 9, 2011/TNR

On March 29, 1989, at a time when many of his fellow first-year law students were beginning to prepare for the spring semester’s looming examinations, Barack Obama paid a visit to the office of eminent constitutional law professor
Laurence Tribe. Obama had not dropped by to brush up for a test. In fact, he had yet even to enroll in an introductory constitutional law course, a gratification Harvard Law School denies its students until the second year of study.

Obama’s call was purely extracurricular: He wanted to discuss Tribe’s academic writings. That a young man on the make would attempt to win a distinguished professor’s favor is, of course, an utterly unremarkable event at Harvard. That institution is not principally known for attracting individuals lacking in either ambition or self-regard. Indeed, by the time Obama made his pilgrimage to Tribe’s office, it is safe to say that he trod a well-worn path. But unlike many such efforts both before and after, Obama’s gambit actually worked. As Tribe would recount many years later, so incisive was Obama’s mind, so magnetic was his personality, so clear was his sense of purpose, that the visit moved the professor to scribble a brief note on his calendar marking the occasion: “Barack Obama, One L.!”

On the basis of that meeting, Tribe took Obama on as one of his research assistants. Tribe shielded his dazzling new hire from the mundane assignments that such positions typically require. “I didn’t think of him as someone to send out on mechanical tasks of digging out all the cases,” Tribe recalled. Instead, the two men would periodically get together, sometimes taking strolls along the Charles River, to exchange lofty ideas about the relationship between law and society. In the wake of Obama’s rapid ascent in politics, Tribe allowed that he viewed “him much more as a colleague” than as a student and even went so far as to call Obama his “most amazing research assistant.”

If Obama were selecting a mentor from the entire legal academy designed solely to infuriate the right, it would have been difficult to improve upon the selection of Tribe. In the late ’80s, conservatives viewed Tribe as an unreconstructed and unprincipled lefty. Ronald Reagan’s reelection in 1984 prompted Tribe to publish a book about the importance of judicial confirmations, God Save This Honorable Court, which many right-wingers thought served as the Democratic playbook for rejecting Robert Bork’s Supreme Court bid in 1987.

Following Bork’s nomination, Tribe fomented opposition, making high-profile TV appearances to condemn the selection. He even assumed the role of Bork in the mock hearings held in the living room of Senate Judiciary Committee Chairman Joseph Biden. “Tribe,” said the committee’s chief counsel, “was a better Bork than Bork.” During the actual hearings, moreover, Tribe offered nearly three hours of devastating testimony by portraying Bork’s judicial views as intolerably extreme. Gary McDowell spoke for many conservatives when he referred to Tribe as “the writer and director, if not the producer, of Biden’s passion play in the autumn of 1987.”

Obama’s relationship with Tribe must have tormented the conservative imagination as it contemplated the type of judges he would nominate once he became president. Edward Whelan, writing in The Weekly Standard in March 2008, sounded the alarm for what he feared was the coming judicial Armageddon. Whelan, who excelled in Tribe’s constitutional law course at Harvard before going on to clerk for Justice Antonin Scalia, warned that Obama would aim to select judges bent on “the entrenchment of leftist policy preferences as constitutional rights.”

Today, a little more than three years later, such statements sound histrionic. Anger about Obama’s judicial appointments is now far more likely to come from the left than from the right. Many legal liberals have criticized Obama for squandering a golden opportunity to reshape the federal judiciary by failing to appoint judges who share their views. It is tempting to believe—as some observers have suggested—that Obama has thus far appointed overwhelmingly moderate judges simply because of Republicans’ unparalleled obstructionism, or that blundering by Senate Democrats has prevented liberal nominees from getting confirmed, or that Obama has decided to spend his political capital on pushing important pieces of legislation rather than his preferred judges.

These explanations all doubtless carry some force. But well into Obama’s presidency, it is necessary to entertain another, perhaps more compelling explanation: that, even in the absence of political constraints, Obama prefers to avoid placing liberal judges on the bench. To understand this possibility, it is necessary to understand that, contrary to popular perception, the Democratic Party is not united behind a single notion of the judicial role. Instead, Democrats are sharply divided by dueling conceptions of what courts can and should achieve in a democracy.

Intriguingly, Obama has forged formative intellectual relationships with the two leading law professors who espouse these competing visions. Tribe may have been the first prominent legal scholar to inform Obama’s view of courts—but he certainly was not the last.

Tribe began his career at Harvard in 1968, only months before Earl Warren would begin his final term as chief justice of the United States. Where an earlier generation of liberal legal thinkers had expressed deep skepticism about the legitimacy of reform that emanated from the judiciary rather than the executive or the legislature, Tribe evinced no such doubts about the Warren Court’s achievements. As Earl Warren gave way to Warren Burger, the pivotal questions for Tribe involved, first, how to protect those achievements and, second, how to build upon them.

The preface to American Constitutional Law—the 1,200-page treatise that secured Tribe’s high status among legal academics, which he published just ten years into his career—unabashedly announced that liberal hand-wringing about the niceties of judicial restraint must end. In an intellectual move that would become a staple, Tribe suggested that the term “judicial restraint” lacked conceptual coherence:

“Judicial authority to determine when to defer to others in constitutional matters is a procedural form of substantive power; judicial restraint is but another form of judicial activism.”

The judicial duty, in Tribe’s estimation, compelled courts to advance contemporary notions of justice. “I reject the assumptions characteristic of Justices like Felix Frankfurter and scholars like Alexander Bickel,” Tribe wrote.

“[T]he highest mission of the Supreme Court, in my view, is not to conserve judicial credibility, but in the Constitution’s own phrase, ‘to form a more perfect Union,’ between right and rights within that charter’s necessarily evolutionary design.”

Although Tribe’s preface made clear that he understood courts were not all-powerful institutions, he nevertheless insisted that judicial actors were uniquely positioned to “raise distinctive voices of principle.” Tribe revisited this thread in God Save This Honorable Court, arguing that the federal judiciary plays an irreplaceable role in countering majoritarian political preferences.

“Even when the Congress and the President can be counted upon to defend most of us from the infringement of fundamental liberties, because the political majorities to which those departments of government answer demand such protection, the Supreme Court often stands alone as the guardian of minority groups,” Tribe contended. “The democratic political process, by its very nature, leaves political minorities vulnerable to the will of the majority.”

These same central themes continued to animate Tribe’s scholarship when Obama worked with him. Obama assisted Tribe on a 1989 article in the Harvard Law Review that advanced a sharp critique of judicial restraint. He also assisted the professor on a 1990 book called Abortion: The Clash of Absolutes. In the book, Tribe attempted to locate what he portrayed as previously overlooked common ground regarding one of society’s most divisive issues. But he dropped all pretense of searching for commonality when it came to delineating the judiciary’s proper role. “The whole point of an independent judiciary is to be ‘antidemocratic,’” Tribe wrote, “to preserve from transient majorities those human rights and other principles to which our legal and political system is committed.”

Obama’s legal education did not end with his three years in Cambridge. Following Harvard, he took a post at the University of Chicago Law School. From that perch, Obama wrote the book that would become Dreams from My Father, taught constitutional law courses, and launched his political career. Obama spent twelve years in all at Chicago, eventually attaining the rank of senior lecturer.

The dominant view of Obama’s time at Chicago holds that he passed through its halls without leaving much of a mark on the institution—and with the institution, in turn, leaving even less of an impression on him. “I don’t think anything that went on in these chambers affected him,” Richard Epstein, a libertarian colleague of Obama’s at Chicago, told The New York Times in July 2008. “He was a successful teacher and an absentee tenant on the other issues.” Admittedly, Obama eschewed the faculty’s renowned roundtable discussions and appears generally to have avoided sustained intellectual engagement with the school’s numerous libertarians and conservatives.

But that does not mean Obama’s time in Hyde Park did not influence his legal views in significant ways. Indeed, assessing how Obama approaches the law as president requires comprehending the legal views of his close friend from the University of Chicago: Cass Sunstein.

Sunstein began teaching at Chicago in 1981, a mere 13 years after Tribe started at Harvard. But legal scholarship, in no small part owing to Sunstein’s efforts, would soon undergo a sea change that makes the gap seem considerably larger. When Tribe ascended to the top of the field, he placed the Supreme Court squarely at the center of his professional life: explaining it, criticizing it, even arguing before it. Sunstein, in contrast, dedicated a tiny portion of his attention to parsing Court doctrine.

Capitalizing upon his unusually wide-ranging fields of interest, Sunstein helped to cement the place of interdisciplinary scholarship in the legal academy. Much of that work, including Sunstein’s, accorded courts and judges a severely reduced role in explaining how societies evolve. Predictably, the contrasts spilled over from the methodological into the philosophical. Where Tribe framed his work in opposition to Frankfurter and Bickel, for instance, Sunstein held them up as patron saints of his own legal theories.

It is important not to exaggerate the magnitude of the differences between Tribe and Sunstein. Considerably more issues unite than divide their respective constitutional visions. Both Tribe and Sunstein have sustained withering attacks from scholars to their left who deride their views as insufficiently radical. Moreover, while Tribe absorbed the right’s venom for Bork’s downfall, it has been almost completely forgotten that Sunstein, too, provided highly critical testimony against the nomination. When Tribe convened a group of scholars who sought to rescue affirmative action following a setback in the late ’80s, Sunstein participated in the effort. And, when Democratic senators attended a retreat to coordinate efforts against President George W. Bush in 2001, two of the three people on the panel concerning judicial appointments were Tribe and Sunstein.

At the same time, there can be no gainsaying the differences between the two figures. The starkest illustration of this intellectual divide may well be located in a New Republic essay that Sunstein wrote in March 1991 (he would later become a contributing editor). In the piece, Sunstein reviewed On Reading the Constitution, a book that Tribe co-wrote with Michael Dorf and in which the authors thank one “Barrack” Obama for having “influenced [their] thinking on virtually every subject discussed in these pages.”

Sunstein pressed two central critiques of the book’s constitutional vision.

First, Sunstein asserted that the volume betrayed an unhealthy obsession with the Warren Court and its legacy. “[T]he Warren Court is long gone,” Sunstein wrote. “From the standpoint of the 1990s, that Court increasingly appears to be a historical anomaly, indeed an unprecedented exception to American political traditions.” Although he acknowledged that the Warren Court “accomplished considerable good,” Sunstein nevertheless asserted that the book’s project “gives off the distinctive and perhaps not altogether pleasant aroma of nostalgia.”

Second, instead of looking to the judiciary for societal reform, Sunstein advocated redirecting constitutional energy into democratic arenas. “[T]he recent retreat of the federal judiciary from social reform ... might ultimately count as one of many steps in the revival of democratic processes in America and, not incidentally, in the spurring of involvement of heretofore weak or passive groups in those processes,” he contended. Sunstein then dusted off precisely the sort of anxiety about judicial decisions that had initially drawn Tribe’s fire many years earlier: “Any set of interpretive principles for the Supreme Court must be centrally concerned about the potentially undemocratic character of judicial intrusion into political processes.”

Sunstein would repeatedly highlight these ideas as he elaborated his own vision of the Constitution in the coming years. In 1993, Sunstein published The Partial Constitution, a monograph that articulated his overarching constitutional conception. In a generally incisive book called Reading Obama, James Kloppenberg recently suggested that The Partial Constitution sits quite comfortably alongside Tribe’s On Reading the Constitution in the tradition of American pragmatism. The two books doubtless contain substantial affinities. But painting both Sunstein and Tribe with the broad brush of pragmatism conceals more than it reveals. Sunstein quite self-consciously pitched The Partial Constitution as a sharp departure from Warren Court liberalism.

“[T]here has been far too much emphasis, in the last generation, on the role of courts in the American constitutional system,” he argued. “This court-centeredness is a continuing problem for constitutional thought in the United States. It has helped to weaken the sense of responsibility of other officials and indeed ordinary citizens, and it has distracted attention from nonjudicial strategies.”

It would be reductive to depict Obama as nothing more than a passive vessel for the legal thoughts of others. After all, he dedicated many hours to teaching constitutional law, and, whatever his other frailties, he possesses a subtle, curious, and analytical mind. He is more than capable of generating his own insights into these matters. Yet, however Obama arrived at his understanding of the judicial role, he has for more than a decade consistently articulated a constitutional conception that bears a striking similarity to Sunstein’s. Obama’s ongoing intellectual debt to Tribe, in contrast, is vanishingly thin.

Mirroring Sunstein’s criticism of liberals’ “court-centeredness,” Obama has claimed that one of the tragic lessons of the 1960s was that “the civil rights movement became so court-focused.” In a TV interview from 1995, Obama justified his calls for deemphasizing the judiciary largely as a concession to the reality of the federal courts’ conservative composition.

“The judiciary these days is not very sympathetic to the cause of civil rights,” Obama explained. “Progress is probably not going to come through the courts these days. We’re not going to see a Brown v. Board of Education type of decision anytime soon. What we’re going to have to do is to work at the grassroots level and the community level.”

Over time, however, Obama’s judicial skepticism has shifted from descriptive to prescriptive. In 2006, Obama wrote in The Audacity of Hope that he “wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”

Early in his presidency, many liberals suggested that Obama, if left to his own devices, would appoint progressive judges. Geoffrey Stone, dean of Chicago when Obama joined the school, captured this sentiment in May 2009. “I would imagine that, if Barack had a free hand to appoint judges without having to worry about confirmations, about politics, that his idea of a great justice would be someone like a Thurgood Marshall,” Stone said. But, as has become apparent with many issues during his presidency, Obama’s actual statements belied both liberal hopes and conservative fears.

Even before he was elected president, Obama had explicitly stated that he was not looking to locate latter-day Thurgood Marshalls—or intellectual heirs to other liberal stalwarts, for that matter. In The Audacity of Hope—a book that acknowledges Sunstein among the “good friends” who provided feedback on the manuscript—Obama expressly championed the appointment of moderate, not liberal, judges.

“Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents,” Obama wrote, “it behooves a president—and benefits our democracy—to find moderate nominees who can garner some measure of bipartisan support.”

And, when the Detroit Free Press asked Obama during the 2008 campaign which justices not currently sitting on the Court would serve as models for his selections, he replied: “

There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, Marshall. But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.” The Warren Court’s methods were justifiable during its era, Obama explained, “because of the particular challenge of” Jim Crow. “I’m not sure that you need that [now],” he said. “In fact, I would be troubled if you had that same kind of activism in circumstances today.”

At last year’s State of the Union address, Obama heartened many legal liberals when he condemned the Court’s opinion in Citizens United v. Federal Election Commission, a decision that invalidated certain campaign-finance laws applied to corporations. But their joy proved short-lived. In April 2010, Obama made impromptu remarks aboard Air Force One, suggesting that the Roberts Court’s jurisprudence should be understood as a type of conservative judicial activism that paralleled the liberal judicial activism of an earlier era.

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Obama stated. “And, in the ’60s and ’70s, the feeling was that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”


Kagan and Sotomayor are not liberal activist judges. They are liberal moderate judges. So is Breyer. So is Ginsburg, though she may be an arguable case. Roberts, Scalia, Alito and Thomas are conservative activist judges. Kennedy is hard to reduce to any category, not necessarily a compliment.

So a question is whether Obama should have gone liberal maximalist via Tribe or moderate, centered minimalist via Sunstein.

Here's a possible ambiguity in Obama's thinking on this question as presented by Driver: I take from him quoting Obama that Obama's position is that the Warren court's judicial activism was appropriate for its time but that these times no longer require that kind--or any kind?-- of liberal activism:

...“There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, Marshall. But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.” The Warren Court’s methods were justifiable during its era, Obama explained, “because of the particular challenge of” Jim Crow. “I’m not sure that you need that [now],” he said. “In fact, I would be troubled if you had that same kind of activism in circumstances today.”...

What this raises is whether Obama can foresee the possibility of a time again in America when an updated Warren kind of activism--geared to a specific set of issues--would be in order. If he can conceive of the possible need for that kind of activism, then, it can be argued, now's the time. That argument, it is clear, animates Driver's view of these things.

I don't know for sure what Sunstein's overarching view of the Warren court is. But I suspect the following comments, taken from Driver's essay, express it:

....“[T]he Warren Court is long gone,” Sunstein wrote. “From the standpoint of the 1990s, that Court increasingly appears to be a historical anomaly, indeed an unprecedented exception to American political traditions.” Although he acknowledged that the Warren Court “accomplished considerable good,” Sunstein nevertheless asserted that the book’s project “gives off the distinctive and perhaps not altogether pleasant aroma of nostalgia.” ...

And Sunstein says elsewhere (

...Nor am I saying that the liberals of the Court’s past were correct in their view of the Court’s role. On the contrary, the Court does best if it proceeds cautiously and incrementally, with respect for the elected branches of government. Marshall and Brennan, no less than Scalia and Thomas, tried to use the Constitution to impose a contestable political vision on the nation. For the future, the preferable route was charted by underrated justices such as Felix Frankfurter and Byron White—excellent lawyers who worked within established categories and were reluctant to strike down acts of elected officials, above all Congress....

It's notable that Sunstein's view of Brown is that, for all it's profound significances, it could have been better reasoned by rooting it in the case law out of which it evolved ( ):

...the Court failed to show that its decision was really an outgrowth of previous rulings. By the time that the Court decided Brown, the handwriting was on the wall; the constitutional invalidity of segregation had been all but established. A firmer ruling, more rooted in a legal context reaching back well over 50 years, would have discouraged the kinds of resistance that made integration so protracted and difficult....

Sunstein's comments on Brown show it to be less of a dramatic departure from the legal status quo than is conventionally thought. And in his "rewriting" of Brown, Sunstein enfolds it in his overall argument for an incremental, moderate, tradition-respecting Supreme Court.

The same can be said of his approach to Roe v Wade ( ):

...As it was written in 1973, Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents.

Moreover, it ruled far too broadly. In its first encounter with the abortion question, the court failed to focus on the particular abortion restrictions at issue, some of which were unusually draconian, forbidding abortion even in cases of rape. Instead, the court took the highly unusual step of a setting out a series of rules for legislatures to follow....

I think Driver is right to assimilate Obama "judicial philosophy"--and, it seems, he has one-- to Sunstein's. And if I had to guess I'd think that despite some possible ambiguity in his comments about the Warren court, Obama shares what seems to be Sunstein's overall view of it.

So, it seems clear, that Driver is correct to say that as between Tribe and Sunstein, as two ends of a spectrum of maximalist running to minimalist approaches to the constitutional function of the judiciary, Obama inclines to the minimalist, incrementalist end.

Of course, for Driver, this is unwelcome, as is caught in the tease to his essay: "A new argument about his legal philosophy—and its troubling consequences." But the brunt of his essay concerns his demonstration of how Obama sees these matters. Driver is content to assert that what is needed is judicial liberal activism--"Obama’s failure to install judges who advance truly progressive constitutional views...” but he has not argued that case as such. So for as clarifying as his exposition of Obama's views have been, I wish he had made that argument.

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