Comments on: Bunglers, Egos, and Law vs. Politics

By: John Quiggin

John Quiggin — Thu, 30 Apr 2009 21:24:21 +0000

Barry, I get the impression that a fair proportion of movement conservatives in the legal movement are shmibertarians of the Glenn Reynolds variety, with more or less liberal views on social issues, but who have to maintain solidarity with the Christianist right. The “let the voters decide” line worked well at least as long as the voters decided the Republican way, and now it makes more sense to these guys to stick with it than to carry on the fight on a losing issue they don’t believe in.

Actually, Googling produces a partial refutation of my expectation: Reynolds takes the “let voters decide” line, but says Roe v Wade was properly decided.
http://www.msnbc.msn.com/id/13459465/

By: Barry

Barry — Wed, 29 Apr 2009 18:55:08 +0000

“It’s striking that quite a few conservatives influenced by the legal movement have been willing to accept the Vermont (?) gay marriage law because it was passed by the legislature.”

Or due to exhaustion, and the additional exhaustion of eight years of Bush + war, economic collapes and GOP troubles.

Frankly, I’ll believe any right-winger is against Roe vs. Wade purely on grounds of judicial quality when they spend as much time on Bush vs. Gore, or Santa Clara County v. Southern Pacific Railroad.

By: John Quiggin

John Quiggin — Wed, 29 Apr 2009 12:01:46 +0000

I don’t think anyone yet has mentioned Roe v Wade, but it was surely the high water mark of the anti-politics strategy and remains a central point of division. It seems reasonable to say that Brown v Board of Education reflected a majority opinion among US voters in general, blocked by entrenched political power. Once the decision was made, there was no serious attempt to overturn it by legislative means – the segregationists only had a veto power, and the courts provided a way around it. After that, executive action and legislative measures like the Voting Rights Act completed the end of segregation.

By contrast, Roe v Wade was much less reflective of public feeling (ambiguous on such a fraught question, of course) and much more reliant on a vanguard view of the courts, which then had to reject lots of attempts at legislative reversal. In some sense, of course, the vanguard view was correct. A reversal of Roe vs Wade by the Roberts Court would probably not now result in effective restriction of abortion rights in most states.

It’s striking that quite a few conservatives influenced by the legal movement have been willing to accept the Vermont (?) gay marriage law because it was passed by the legislature. That’s not to say, of course, that these guys are consistent advocates of judicial restraint. In general, they’re happy to see Republican courts striking down Democratic legislation. But on an issue with such obvious echoes of Roe vs Wade, some of them do seem to be influenced by their own rhetoric.

By: Orin Kerr

Orin Kerr — Wed, 29 Apr 2009 01:58:36 +0000

Excellent post, Mark.

By: Andy Vance

Andy Vance — Tue, 28 Apr 2009 16:07:04 +0000

The liberal movement was an evasion of politics…The conservative legal movement had a different relationship to politics

Well, not quite. The latter, particularly law & econ, asserts the impossibility (“proven” by Arrow’s theorem, rational voter paradox et al) of an unforced consensus about the public good. Politics is just another word for rent-seeking.

By: Barry

Barry — Tue, 28 Apr 2009 15:23:14 +0000

“And the Law and Economics project seems to have succeeded finally when it situated itself within the Ivory Tower, inculcating professors into the heart of academia. It is not an arm of conservative politics, and there are liberals (for example, current Obama administration official Cass Sunstein) who have embraced some of the insights of Law and Economics. ”

Cass is a liberal? Didn’t he endorse Alito?

By: Barry

Barry — Tue, 28 Apr 2009 15:22:39 +0000

“Having worked at a liberal foundation, I often thought there was too much emphasis on personality, a “star system” in which a few people can get grants and lots of good ideas go unfunded, but there is quite a case to be made for the focus on individuals – so long as it is the right individuals in the right roles—as much as it goes against liberal instincts about meritocracy and equal opportunity. ”

I don’t see the conflict – they’re looking at who succeeds, which areas succeed, and in which combinations, and backing those. It’s rather meritocratic.