The Judicial Culture Wars

Judicial Power and American Character: 
Censoring Ourselves in an Anxious Age By Robert F. Nagel
Oxford University Press, 208 Pages, $29.95

Robert Nagel, a Professor of Law at the University of Colorado, could have subtitled his new book “The Culture Wars Come to the Supreme Court.” It is not so much about the law the Court makes as the rhetoric the Justices employ, and about the role of the Court itself as a forum for enacting a kind of national drama about the anxieties of the American people. Such events as the confirmation hearings of Clarence Thomas and Robert Bork are as much a part of that drama as the arguments and opinions in the legal cases. The issues covered in the book encompass the judicial side of the contemporary culture wars: the Bork hearings symbolized the clash of democracy and elitism as the law professors engaged in a fratricidal war; the Thomas hearings involved sexual harassment, rampant careerism, racial preferences, and pornography; and the abortion and flag-burning cases showed Justices openly asking the public to put pressure on other Justices. There is frequent name-calling in the opinions and implicit anxiety that the people may not be up to the high standards of the legal elite.

Reading this rather pessimistic account of the state of the judicial culture made me reflect ambivalently about the Supreme Court in the heyday of Earl Warren, when I saw the institution up close as a law clerk. Were things better then? Thirty years ago, the Court was liberal ideologically but conservative culturally. The Justices were gentlemen, and relations between them were cordial. I remember Warren saying that he planned to assign a certain opinion to the conservative Justice John Marshall Harlan because it was a rare instance where Harlan was in the liberal majority, and that “it would make John feel good” to be the leader of the liberal wing for once. Whatever rivalries existed under the surface, the prevailing atmosphere was one of good will and mutual respect.

The liberal majority itself was animated by a sense of purpose. The Constitution was being brought to life. Racism was being addressed and slowly overcome; rights of criminal defendants that had existed only on paper were becoming a reality. The Court itself, despite its detractors, had gained an immense prestige as the conscience of the nation. The Justices loved their work, and it seemed to every law clerk that being a Supreme Court Justice was the finest prize that life could offer.

Some of this confidence was justified, but much of it was founded upon illusion. The Court itself was the very archetype of the “liberal plantation,” with the blacks in menial roles, the women present as secretaries, and the Justices genial as only secure aristocrats can be. (I well remember the distaste with which some very liberal Justices, who later became passionate advocates of feminism, regarded the prospect of having to employ a female law clerk.) The underside of the Court’s prestige was its hubris, as the Justices got the idea they could impose simplistic solutions on complicated problems. The good will that the Court won on the race issue was squandered on the abortion wars, and the political process ensured that the Court became as divided as the country itself. I suspect it is a lot less enjoyable to be a Justice today.

Unlike most leading constitutional law scholars, Nagel is more determined to understand our situation than to peddle a set of answers. For this reason, he tends to see similarities of method where others would see differences in ideology. Justice Blackmun appeals over the heads of his colleagues to the pro-choice movement in abortion politics; Chief Justice Rehnquist does the same in the flag-burning case. Robert Bork, Laurence Tribe, Ronald Dworkin, and law professors as a class are all similar in the rationalistic approach to problems that, at least in the estimation of the public and the politicians, require more heart and less head. The problem is not that neither the right nor the left wing of the legal elite has yet won the field; the problem is that the legal elite as a whole is thoroughly implicated in the culture wars.

Nagel’s analysis is not as politically neutral in effect as that summary might suggest, however, for the legal elite in our time has been dominated by liberal ideology. Liberals continue to advance, and a success for conservatives is to slow the advance or perhaps trim it a bit. Conservative Justices even join the liberal parade on particularly important occasions. The right to abortion was proclaimed under the leadership of Nixon appointees, and reaffirmed by Reagan appointees. The notorious “Lemon test” that has been so useful in advancing the secularization of society came not from Earl Warren, but Warren Earl Burger.

These legal rules exist for the purpose of keeping fundamental questions under the control of the knowledge class, which is the Court’s real constituency. Even the “one person, one vote” principle of the reapportionment cases was not a populist reform, but a measure that increased the power of the voting blocs most subject to the influence of the national media. If it is a fault to distrust the people, and to insist that democracy must be guided by the presuppositions of an intellectual elite, then by some magic that fault has an inherent tendency to benefit the cultural left.

Robert Nagel is one of the more original scholars in the field of constitutional law, and his work is helping to take legal thinking in a direction I applaud. Too much of legal scholarship is devoted to advancing a political program, with rhetorical gimmicks employed to make the author’s partisan notions sound like neutral constitutional principles. Nagel’s viewpoint is conservative in a broad sense, but not in a narrowly partisan sense. He is concerned with the virtues and vices of the citizens and their leaders, because the national character is more important in shaping the society than the legal rules that purport to govern it. The model for this kind of scholarship is Alexis de Toqueville, and it is a model I hope many others choose to follow.

Phillip E. Johnson is Professor of Law at Boalt Hall, the law school of the University of California at Berkeley.