The Supreme Courts History of Protecting the Powerful – The New Yorker

Laurence Tribe, who turned eighty last year, has been one of the most prominent liberal legal scholars of the last half century. A professor to John Roberts, a mentor to Barack Obama, and an advocate who has appeared dozens of times before the Supreme Court, Tribe has also published numerous books about the Constitution and the Courts history. More recently, Tribedespite the reverence with which he initially wrote about the Courthas been highly critical of what he sees as its increasing rightward tilt and politicization by Republican-nominated Justices. Tribe has also established himself as a prolific commenter on current affairs, both on television and Twitter (where he has more than a million followers), specifically by making caustic attacks on former President Donald Trump, whom he has accused of committing multiple crimes.

I recently spoke by phone with Tribe, currently the Carl M. Loeb University Professor, Emeritus, at Harvard, several days after the leak of Justice Samuel Alitos draft opinion that argued for overturning Roe v. Wade. During our conversation, which has been edited for length and clarity, we also discussed his impressions of Justice Roberts throughout the decades, his changing views of the Courts role in American life, and how he looks back on his controversial work for the coal industry.

How has your thinking about the Supreme Court as an institution changed over the past fifty years?

I would say that because I am part of the generation that grew up in the glow of Brown v. Board of Education and of the Warren and Brennan Court, and identified the Court really with making representative government work better through the reapportionment decisions and protecting minorities of various kinds, I saw the Court through rather rose-tinted glasses for a while. As I taught the Court for decades, I came to spend more time on the dark periods of the Courts history, thinking about how the Court really preserved and protected corporate power and wealth more than it protected minorities through much of our history, and how it essentially gutted the efforts at Reconstruction, and I focussed more on cases like Dred Scott and Plessy v. Ferguson and Korematsu.

And in recent years, as the Court has turned back to its characteristic posture of protecting those who dont need much protection from the political process but who already have lots of political power, I became more and more concerned about its anti-democratic and anti-human-rights record. I continued to want to make sense of the Courts doctrines. I wrote a treatise that got very frequently cited around the world and that shaped my teaching about how the Courts ideas in various areas could be pulled together. But then, after I had done the second edition of that treatise, and it became relied on by a lot of people, I decided [after the first volume] of the third edition, basically, to stop that project.

What were you arguing in the first two editions?

The first was the first effort in probably a hundred years to pull together all of constitutional law. And it led to a rebirth, or flowering, of lots of writing about constitutional law, and writing more focussed on methodology, with different forms of interpretation. I was very excited about that project, and [the second edition] continued it. Most of what I did was to see connections among different areas. I would be writing about commercial regulation, and I would see themes that popped up in areas of civil rights and civil liberties. Or Id be writing about separation of powers, and I would see problems that arose elsewhere.

And I was always trying to find coherence, because my background in mathematics had led me to be very interested in the deep structures of things. I was working on a Ph.D. in algebraic topology when I rather abruptly shifted from mathematics to law. And so, in my treatise, I developed what I thought of as seven different models of constitutional law. Im always fascinated by different perspectives and lenses and models. Ive never thought of law and politics as strictly separate, and efforts by people like Steve Breyer to say that we shouldnt concede that constitutional law is largely political have always seemed to me to be misleading. That said, I still saw efforts at consistency and concerns about avoiding hypocrisy from the Court. But those things began getting harder to take seriously.

And then Steve Breyer wrote me a long letter saying, When are you going to finish the third edition of your treatise? And I wrote him a letter back, which then was published in various places, saying, Im not going to keep doing it. And heres why. It was a letter that described how I thought constitutional law had really lost its coherence.

At one level, youre saying something really changed with the Court. But earlier you said that the Court has always had some history of protecting the powerful and not protecting minority rights or the powerless. So did something change, or did the Court just have this brief period, after the Second World War, when you saw it as different before returning to its normal posture?

I think theres always been a powerful ideological stream, but the ascendant ideology in the nineteen-sixties and seventies was one that I could easily identify with. It was the ideology that said the relatively powerless deserve protection, by an independent branch of government, from those who would trample on them.

Right. The Warren Court was also ideological; it just happened to be an ideology that you or I might agree with.

Exactly. No question. It was quite ideological. Justice Brennan had a project whose architecture was really driven by his sense of the purposes of the law, and those purposes were moral and political. No question about it. Im not saying that somehow the liberal take on constitutional law is free of ideology. There was, however, an intellectually coherent effort to connect the ideology with the whole theory of what the Constitution was for and what the Court was for. Mainly, the Court is an anti-majoritarian branch, and its there to protect minorities and make sure that people are fairly represented. I could identify with that ideology. It made sense to me, and I could see elements of it in various areas of doctrine. But as that fell apart, and as the Court reverted to a very different ideology, one in which the Court was essentially there to protect propertied interests and to protect corporations and to keep the masses at baythats an ideology, too, but it was not being elaborated in doctrine in a way that I found even coherent, let alone attractive.

Maybe Im wrong about this, but I see more internal contradiction and inconsistency in the strands of doctrine of the people who came back into power with the Reagan Administration and the Federalist Society. Im not the person to make sense of what theyre doing, because it doesnt hang together for me. Even if I could play the role that I think I did play with a version that I find more morally attractive, its a project that I would regard as somewhat evil and wouldnt want to take part in.

Im not trying to paint the picture that says everything was pure logic and mathematics and apolitical and morally neutral in the good days of the Warren Era, and incoherent and ideologically driven in other times. I think that would be an unfair contrast. So I hope what Ive said to you makes it a little clearer.

You wrote a rather striking piece in The New York Review of Books recently, called Politicians in Robes, where you take issue with Breyer essentially still believing that the Court can be apolitical. How should we view the Court now? I think that there is a tendency to say, These guys are politicians, and they make partisan choices the way anyone else does.

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The Supreme Courts History of Protecting the Powerful - The New Yorker