Larry Tribe and the Current Supreme Court

Larry Tribe.

Isaac Chotiner interviews the Left’s favorite law professor, Larry Tribe, for the New Yorker, seeking his response to the lamentable circumstance of the country finding itself with a conservative, Originalist majority on Supreme Court, an apparent majority perfectly prepared to reverse Roe v. wade.

Larry is obviously not happy.

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 Court’s 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 don’t 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 Court’s doctrines. I wrote a treatise that got very frequently cited around the world and that shaped my teaching about how the Court’s 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 I’d 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. I’m always fascinated by different perspectives and lenses and models. I’ve never thought of law and politics as strictly separate, and efforts by people like Steve Breyer to say that we shouldn’t 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, “I’m not going to keep doing it. And here’s why.” It was a letter that described how I thought constitutional law had really lost its coherence.

At one level, you’re 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 there’s 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. I’m 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 it’s 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 bay—that’s an ideology, too, but it was not being elaborated in doctrine in a way that I found even coherent, let alone attractive.

Maybe I’m 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. I’m not the person to make sense of what they’re doing, because it doesn’t 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, it’s a project that I would regard as somewhat evil and wouldn’t want to take part in.

I’m 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 I’ve 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.”

I guess I think citizens should look at the Court as an inherently political institution, which ideally would, however, offset the aspects of politics in which those who already have power accumulate more of it at the expense of ordinary people and people who are downtrodden or subordinated or subjugated. And people should be critical of the Court when it departs from that function, because then they should say to themselves, “Who are these guys, who essentially were not elected, are independent, are secure and protected? What’s the point of protecting them if they are simply protecting those in power already?” Their independence is of value precisely when they perform an important function: both making democracy work better and protecting those who can’t protect themselves effectively through the political process. People should say to themselves, “When they’re not performing that function, then we really ought not to respect their work and give it a lot of weight.”

Now you or I (unworthy reactionaries that we are) may be inclined to think that the Supreme Court’s job is to interpret the law correctly, strictly in accordance with the Constitution.

Professor Tribe, as we see above, has a completely different theory. In his view, the Supreme Court’s real purpose is to afflict the powerful and enforce, at any cost, the interests of minorities, the “downtrodden or subordinated or subjugated.”

Professor Tribe is indifferent, or actively hostile, to the actual text and meaning of the Constitution, it being obviously in his view the work of dead white males bent only upon protecting the interests of rich white men exactly like themselves.

Professor Tribe’s sympathy for, and emotional identification with, minorities, the poor, and the oppressed, his post-observant-Judaic reflexive Leftism, in his view, apparently rises to a level of significance more worthy of enforcement than the authentic meaning of the Constitution’s text or the intentions of the framers. Pardon me for finding this more than a little intellectually self-indulgent.

More than merely self-indulgent, personally, I tend to look upon the vice-like-grip of representatives of the Elite Gentry Left, like Professor Tribe, upon the cause of “the poor, minorities, and the oppressed,” to be in reality in the nature of a self-interested tactic.

It would obviously be unbecoming for rich fat cats comfortably ensconced in the most prestigious positions in Society to be found asking for greater powers, more privileges, more authority for themselves. The peasants might respond with indignation. But, when, you see, they point to a category of victims, defined specifically as less well off than everybody else, more miserable and more wronged than the rest of all you nobodies, and appoint themselves as the champions and protectors of these lepers and untouchables, it’s a whole new ballgame: the sky’s the limit what they can demand. It’s a very old con game, and a very effective one. That’s why so many play it.