The cult of constitutional law has been a complete and utter failure
Judges have always been legislators in black dresses, and the liberal legal establishment's failure to understand this has been devastating
This essay is the fifth in a series called “How This Happened,” examining larger trends in American political history and how they manifest in today’s politics. Please subscribe to receive future installments.
I'll never forget a conversation I had with a senior associate attorney one day when she asked me for some rhetorical advice on a brief she was writing.
“You should find out who appointed the judge and then craft your factual arguments toward his political ideology,” I advised. “He’s going to start from that basis on anything he does.”
“That’s ridiculous,” she replied, offended that I had dared to suggest that judges decided cases on anything other than the facts.
I thought of that conversation today after learning that right-wing judge Aileen Cannon had dismissed the federal case involving former president Donald Trump’s refusal to turn over classified documents after he left office. Cannon’s ruling is one of many made by reactionary judges recently that should permanently dispel a powerful delusion that ruled liberal jurisprudence for many decades and still lingers: the belief that there are objective legal reasoning principles, and that judges follow them.
In the realms of literature, politics and philosophy, basically no one with liberal sensibilities believes that there are such things as moral absolutes. Likewise, science is premised on the idea that observable reality does not necessarily correspond with how things actually work. If you ever attended a course in American constitutional law, however, you likely heard a totally different story about moral and factual objectivity, one told by what I call the cult of constitutional law.
The cult began developing in the late 20th century as the number of law schools began drastically multiplying across the country. This huge expansion in people teaching about the legal system coincided with the Supreme Courts of Earl Warren and Warren Burger, both of which made a series of landmark rulings like Roe v. Wade, Brown v. Board of Education, and Nixon v. General Services Administration that expanded civil rights and placed important restrictions on presidential power. In so doing, they rejected decades of precedent, earning them the ire of reactionaries who branded them as “judicial activists.”
Most people have no problem perceiving that judges are just as biased as anyone else and that courts are just legislatures in black dresses. But in the cult of constitutional law, the liberal anomalies of Warren and Burger were not simply legislating their opinions from the bench, they were legal explorers who had discovered hidden bayous of American jurisprudence where mystical penumbras and emanations abounded! The law was now a magical place where all judges set their opinions aside and looked only at the facts.
Justin Driver, a Yale professor of constitutional law, summarized the myth very well earlier this year to New York Times columnist Jesse Wegman. “One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means.”
This is complete and utter nonsense, needless to say. Courts have always been political bodies and judicial cultists have never been able to rebut the searing historical analyses of the critical legal theory movement, so they have simply ignored them.
The failure to recognize judges as legislators in black dresses led Democrats to neglect the judicial system, even as the Federalist Society was amassing hundreds of millions of dollars to create a conveyor belt factory of Christianist ideologues like Antonin Scalia and Clarence Thomas. The left’s inaction allowed the right to strategically fill the courts with judges who view the law through a fundamentally reactionary, usually religious, lens.
Instead of realizing what was happening right in front of them and beginning to sound the alarm to Democratic voters, the liberal legal establishment was deluded by the careers of Justices Sandra Day O’Connor and David Souter, who evolved in a more moderate direction over time after being appointed by Republicans. Instead of seeing the duo as the last vestiges of the nearly extinct conservatism of Dwight Eisenhower, the cult of constitutional law saw Souter and O’Connor as inevitable products of the miraculous power of judicial objectivity.
While liberals looked upon Souter and O’Connor in admiration, reactionaries were also observing. Under the leadership of Catholic extremist Leonard Leo, they created an institution, the Federalist Society, that indoctrinated and vetted right-leaning law students throughout their entire careers, carefully grooming authoritarian impulses and diverting anyone who was too independent-minded.
All of this happened in public view. Out of necessity, reactionary legal activists conducted their program in front of everyone, but con law professors paid so little attention to the right that they utterly missed how Christian fundamentalists with viewpoints barely different from Ralph Reed and Pat Buchanan rebuilt the right-wing legal establishment to push a completely different epistemology based upon authority rather than empirical reasoning to support the American right’s larger goal of rolling back the entire 20th century.
The John Roberts Supreme Court’s systematic dismantling of the temporary center-left jurisprudence that once prevailed has been devastating to civil rights and government’s ability to function. But instead of acknowledging and rapidly moving to repair the damage wrought by their cataclysmic naïveté, the cult of constitutional law is curled in the fetal position.
Rebecca Brown, a con law professor at the University of Southern California likely spoke for many in remarks to the Times’s Wegman.
“While I was working on my syllabus for this course, I literally burst into tears,” she said. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”
Brown and nearly everyone in the center-left legal establishment still have not learned that the Republican Party is not conservative. It is reactionary and as such, it has absolutely no regard for precedent the way that actual conservatives do.
People fighting for a return to feudalism will never engage in a fair fight. This reality necessitates a strategic adjustment, yet Democratic leaders even now are not responding as they must. Despite seeing Republicans campaign for decades on seizing control of the judiciary, they failed to educate Democratic voters about what was at stake. Even worse, Democratic elites under then-president Barack Obama deliberately abandoned the idea of competing in every state, ceding control of the Senate’s judicial confirmation power to Mitch McConnell, who abused it in every way possible, including stealing a Supreme Court seat from Obama.
We are now living with the consequences of these grave mistakes. The judicial landscape has been dramatically reshaped, and the left finds itself on the back foot, grappling with a legal system run by people seeking to replace it with Christian theocracy.
Despite the multiplicity of lawsuits and government investigations of Donald Trump, the right’s ironclad control of the judiciary has made it so that the courts could never save us from his authoritarianism. The only effective way to defeat Trump and the movement that spawned him is through electing officials who will pull the judiciary down from its pedestal and make it into the “least dangerous branch” which America’s founders intended it to be.
The only law is power.