11.13.2015
  • United States

Progress Without Politics

A new book on Ruth Bader Ginsburg celebrates the liberal project of achieving social change through the courts. But that project has failed.

The Supreme Court Building in Washington, DC. chinesejudge / Flickr

In 1954, the Supreme Court ruled in Brown v. Board of Education that state laws mandating segregated public schools were unconstitutional.

Five years later — in the wake of a coordinated campaign of southern “massive resistance” to court-ordered integration — legal scholar Herbert Wechsler expressed his doubts about whether the Court’s holding in Brown “really turned upon the facts” to a lecture audience at Harvard Law School. Instead, he believed that “it must have rested on the view that racial segregation is, in principle, a denial of equality.”

Wechsler, a liberal opposed to segregation, feared that Brown’s outcome sprang from a consideration of moral principles rather than canons of legal reasoning. He insisted that judicial probity meant refusing to allow political commitments to drive legal decision-making, fearing that the Court risked losing its institutional legitimacy if it addressed contentious political issues directly.

Wechsler hoped that jurists would be able to identify “neutral principles” for the adjudication of disputes over constitutional meaning and structure and thus prevent the intrusion of ideological commitments into debates about constitutionality. Otherwise, the rule of law itself would be imperiled.

Ruth Bader Ginsburg, a pupil of Wechsler’s, would later gloss his lecture by distilling it down to the claim that “the way we decide things is very often . . . as important as what we decide.” Justice, in other words, must be pursued in a measured, moderate, and incremental way, through adherence to neutral principles. In a storied career as an attorney, an activist, a judge, and a justice of the Supreme Court, Ginsburg has demonstrated a clear commitment to such a vision of the role of the law.

Neither Wechsler’s appeal for neutral principles nor Ginsburg’s appreciation of it appear in Notorious RBG: The Life and Times of Ruth Bader Ginsburg, Irin Carmon and Shana Knizhnik’s celebratory new book about Ginsburg’s life in the law. Exuberant in tone and yet far from irreverent, the book charts Ginsburg’s entire career, from her time as a law professor at Rutgers to her tenure as cofounder of the ACLU’s Women’s Rights Project (and later as the organization’s general counsel) to her appointment as a federal judge — and ultimately, her ascent to the Supreme Court.

Wechsler does makes two brief appearances. We see him as a guest at a Harvard dinner party at which the first nine women accepted to the law school are asked by the dean to justify why they have been admitted instead of nine men. Years later, Ginsburg confides to him her frustrations with the misogyny and obstreperousness of senators opposed to her appointment to the DC Circuit.

These cameos are clues to the narrative structure of the book. Notorious RBG is not just a thoughtful portrait of Ginsburg’s personal and professional development. It is an effective presentation on how access to and participation in elite networks and institutions are the central preconditions for pursuing social and political change through the law.

Wechsler is one of Ginsburg’s many teachers who appear in the book; another, Robert Cushman, is credited with having shown her “what law could do in the world.” Carmon and Knizhnik are eager to let the reader see just how many influential scholars and lawyers their subject has met over the course of her life. But Ginsburg is no one’s acolyte; she is not an adept of someone else’s judicial philosophy. (Unlike Wechsler, for example, she once described Brown as one of the Court’s “ultimate triumphs.”)

Ginsburg’s reputation rests on her own qualities as a jurist; of these, Carmon and Knizhnik place special emphasis on her incrementalism. The figure the book paints is neither a judicial activist, unconstrained by legal texts or the canons of interpretation, nor a jurisprudential formalist who believes that authoritative rules for decision-making can be found within the four corners of a document.

Carmon and Knizhnik approvingly quote Ginsburg’s description of her own go-slow approach with respect to judicial review — implicitly bounded by public opinion, but notionally tethered to the content of legal texts: “Generally, change in our society is incremental, I think. Real change, enduring change, happens one step at a time.”

The authors are unstinting in their praise and admiration for Ginsburg, leavening the book’s historical and biographical passages with photographs, cartoons, and other iconography drawn from the Notorious R.B.G. Tumblr. Readers are left with no doubt as to how they are intended to perceive the justice and her contributions to the law.

To be sure, Ginsburg’s achievements are impressive and her legacy secure (especially with respect to federal procedure, though this receives less attention in the book than might be expected).

Lost in the accolades, however, is an appreciation of the extent to which the grand liberal project of promoting social equality through judicial review has failed.

The Supreme Court has been a focus for liberal hopes since the Warren Court’s heyday in the 1960s. The justices who controlled the Court during this period were not afraid to use judicial review as a tool for achieving political ends. Their interventions laid the foundations for the rights-based approach to jurisprudence that liberal civil rights and civil liberties organizations still favor today.

The Warren Court’s victories in taking on segregation, civil liberties restrictions, and invasive policing tactics prompted a legalistic turn in liberal political strategy. Judicial review — once regarded as a tool of reaction and a barrier to reform — became more attractive as a method for achieving political goals. The Supreme Court’s higher political profile turned judicial appointments into valuable prizes.

Liberal intellectuals abandoned skepticism about judicial review (the Court’s role in tilting labor relations in favor of capital, and in thwarting of New Deal legislation, was no longer dwelt upon) and instead offered full-throated defenses of judicial supremacy: the view that only the Supreme Court can make authoritative interpretations of the values embedded in American public law.

Ever since, this turn toward legalism has furnished the hope that, even if liberals are unable to accomplish their policy goals through collective action, they can achieve them simply by being right. Judicial review by liberal justices is the alchemy through which attitudes and preferences may be transmuted into policy without organization, confrontation, or uncertainty — without politics.

The political corollary to judicial supremacy is quietism: the possession of rectitude and personal integrity becomes a political act. It is, perhaps, the most important political act — more important than collective acts of contesting, confronting, or demanding.

In the current moment, when a neoliberalized Democratic Party has abandoned any pretense of being a friend of workers, and has cut ties with the social movements that formerly sustained it, this tension between the legalization of politics and the abandonment of democratic engagement is approaching the level of an absolute contradiction.

Notorious RBG reproduces this contradiction by elevating judicial sagacity over political possibility. For Carmon and Knizhnik, Ginsburg is “a radical just by being herself.” Never mind that, on the Court and off, liberals are losing on their own terms — she’s right, and that’s great.

The hagiographical aura in Notorious RBG is most luminous in a two-page table containing summaries of Ginsburg’s most notable dissents since 2003. The quotations lifted from each dissent are all stirring, acerbic, or poignant in their turn, but they are unaccompanied by quotations from the majority opinions — that is, the winners.

It is on the strength of these dissents that Ginsburg has been crowned the Notorious RBG. But their frequency is an index of powerlessness. And while Ginsburg is the most prominent of the Court’s liberals, that stature is held among the members of a minority bloc. “Actually changing the law means getting to five votes,” as Carmon and Knizhnik grudgingly acknowledge. They do not pause to consider how it would be possible to pursue more than four votes.

The limiting factor in such a pursuit is electoral success. Without liberal presidents and senators, the Court’s liberal justices will not gain any more like-minded colleagues. Electoral politics is distinguished from judicial politics by considerations of scale, institutional context, and material conditions.

Ideologically coherent parties that can rely on the support of mobilized social movements typically do best in such a contest. The Democrats — who hardly meet such a description — are increasingly unable to deliver on one of the few concrete promises they make during presidential electoral contests: that they will keep the federal judiciary staffed with ideologically acceptable judges and justices.

Six decades after Brown signaled the rising tide of Warren Court interventionism, the search for a politics-transcending jurisprudence — of public law that is insensitive or even invulnerable to democratic contestation — has failed.

The modest and contingent achievements of liberal judicial review’s golden age — expanded civil liberties, limitations on police searches, the expansion of Bill of Rights protections into state law — are not self-enforcing. Without constituencies or organized political formations to sustain them, they are vulnerable to concerted political and legal attacks — precisely the kind that conservatives have successfully waged.

For Carmon and Knizhnik, Ginsburg’s dissents are spirited defenses of an inclusive and egalitarian vision of the law. But a lone justice’s dissents, unaccompanied by the political mobilization that might produce meaningful changes in policy or, indeed, the composition of political institutions, hardly amount to an emancipatory politics.

Notorious RBG ends in an upbeat, hopeful tone. (In “How to Be Like RBG,” one of the many appendices, a smiling, cross-stitched Ginsburg figure implores the reader to “work for the things you care about.”) But surely a book charting Ginsburg’s career — from groundbreaking activist lawyer to distinguished federal judge to lonely and unheeded minority voice — should conclude in an elegiac mood.

Viewed from the other side of the Democrats’ left flank, the heavy emphasis liberals have placed on controlling Supreme Court is bemusing. Incrementalist tinkering cannot meet the Left’s demands regarding unemployment and economic inequality, the gendered division of labor that makes capitalist exploitation possible, the persistence of structural racism, the heedless destruction of humanity’s metabolic relation with nature in the pursuit of accumulation, or American imperialism and militarism abroad.

To address such challenges requires a theory of politics, not a theory of constitutional interpretation; to meet them requires collective action, not judicial deliberation.

The unacknowledged irony at the heart of Notorious RBG is not that judicial review is inadequate for emancipatory political projects. Rather, it is that judicial review is not even adequate for the tepid meliorism that most elite liberals consider the leftward boundary of political possibility.

Perhaps the intersection of law and politics really does contain some potential for social change, if not quite social revolution. But as the full account of Ginsburg’s career suggests, law without politics is a feeble instrument.

Notorious RBG will be eagerly pressed into the hands of many earnest admirers of the most vocal and forthright liberal justice on the Supreme Court. Let us hope that at least some of them will read the book as a cautionary tale and not as a guide for changing the world.