The 4:00 pm Saturday round of panels at the recently concluded annual meeting of the American Society for Legal History included “Rolling Back the Rights Revolution: The Conservative Ascendancy and the Shifting Legal Terrain.” I chaired and commented at this quite adequately attended session. The panel was to consist of three papers, including “Litigation, Arbitration and the American State,” by Sarah Staszak, an assistant professor of political science at the City College of New York and, currently, a Robert Wood Johnson Foundation Scholar in Health Research at Harvard University, but Professor Staszak was unable to attend. Not to worry: before too long you'll be able to read her No Day in Court: Access to Justice and the Politics of Judicial Retrenchment, due out next year from the Oxford University Press. Professor Staszak has already published some of her other findings in Law and Social Inquiry and Studies in American Political Development.
The first paper, then, was “The Rights Revolution and the Politics of Fiscal Retrenchment,” by Alexander Gourse, a Ph.D. candidate in history at Northwestern and a JD candidate at the Stanford Law School. It is part of his dissertation, “The Lawyers’ War on Poverty and the Politics of Democratic Pluralism, 1964-1989.” It recounted a failed constitutional referendum, Proposition 1, that a conservative activist, Lewis Uhler, persuaded then Governor Ronald Reagan to support in 1973 despite the misgivings of the governor’s other advisers. Uhler was the son of a Sunkist executive and FDR hater; he was also Edward Meese’s classmate at Yale College and the University of California-Berkeley’s law school. His proposal set a ceiling for state expenditures that would decrease over time in a constitutionally implemented program of “enforced austerity.” Although the referendum failed, in part because Governor Reagan publicly stated that he did not understand it, Gourse shows that it was an early point of entry for economist James M. Buchanan’s public choice theory into the thinking of conservative political and legal figures. The then-law professor Anthony Kennedy, for example, worked on Proposition 1.
The second paper was “Silencing the Cell Block: Prison Litigation, Federal Courts and the Creation of North Carolina’s Inmate Grievance Commission,” by Amanda Hughett, who is ABD in Duke University’s History Department. Hughett starts her paper, also culled from a dissertation in progress, with Congress’s passage in 1995 of the Prison Litigation Reform Act, which, she writes, made “it nearly impossible for inmates to challenge correctional practices that violate their constitutional rights.” She especially faults the statute’s requirement that prisoners exhaust all administrative remedies before filing a federal lawsuit, because most states' grievance procedures are extremely difficult for prisoners to navigate. When she investigated the origins of North Carolina’s grievance system, she expected to find conservatives intent on rolling back “civil rights by limiting access to federal courts.” She found, instead, that the initial proponent was a lawyer for the North Carolina Civil Liberties Union, who had concluded that federal courts were so overwhelmed by frivolous Section 1983 suits that they could not give “those very few cases that are promising” the requisite attention. Only later did the U.S. Senator and former North Carolina Attorney General Robert Morgan lay the statutory groundwork that allowed a grievance procedure “designed to improve life behind bars” to become “an obstacle that inmates had to overcome to access the courts.”
My comment, which discusses Staszak’s paper along with Hughett’s, follows after the jump.
The papers provided me with an occasion to look in on the emerging synthesis political synthesis of American legal history of the late twentieth century, which I last took a stab at stating it in the final third of a chapter in the Cambridge History of Law in the America (2008). In that essay, I depicted the period, in terms borrowed from the literature of American Political Development, as the consolidation of a political regime defined by the administrative state. I dwelt on such subjects as the rise of hard look review of price-and-entry regulators, attempts to cabin in environmental, health and safety regulation, the rise of conservative legal foundations, the Supreme Court’s revival of regulatory takings doctrine, and the spread of cost-benefit analysis.
Although a focus on administrative agencies made sense, my charge from the CHLA’s editors, it left a lot out, even of that part of late twentieth century American legal history observable from the vantage point of politics. Most importantly, it did not give the many social movements pressing their claims as rights in the courts their due. Of course, I wasn’t alone in failing to get inside- and outside-the Beltway legal history into the same frame. That has long been one of the field’s bigger challenges–even for the time before there was a Beltway! (But see Risa Goluboff’s Lost Promise of Civil Rights, Michele Landis Dauber’s Sympathetic State, and Sophia Lee’s Workplace Constitution from the New Deal to the New Right.)
I didn’t attempt such a synthesis in my comment. Instead, I merely ventured the observation that the political history of American law after the Rights Revolution wasn’t simply a story of how conservatives got their groove back (as it were). It was also a story about how liberals lost theirs. It should conservatives ascending the learning curve of law and politics in the late-twentieth-century United States and also liberals failing to keep pace. Conservatives’ successes and the forces behind them had much to do with liberals’ failures, but the session left me convinced that the burdens liberals took upon themselves in adopting legal liberalism as a reform strategy were an independent factor. Even though liberals created the Rights Revolution, they, no less–or not much less–than conservatives, had to learn how to negotiate its new political and legal terrain and keep from being outflanked by their rivals.
Gourse’s paper showed conservatives getting their groove back. I found much of it reassuringly familiar after having read Kimberly Philip-Fein’s Invisible Hands, Steven Teles on the conservative legal movement, and Jefferson Decker’s dissertation (and forthcoming book) on conservative lawyers and the Reagan administration. That Lewis Uhler inherited his antitstatism from his father was is in line with scholarship emphasizing continuity in the history of American conservatism. The narrative arc of dissertation, as I understood it, was also familiar: the Reagan revolution starts as a revolt in the American West, home of the sagebrush rebellion and the Pacific and Mountain States legal foundations, then marches on Washington. Finally, Gourse’s emphasis on public choice is in line with Teles’s book and other work on the growing influence of economic thinking in legal and policy making.
Less familiar for me was Gourse’s depiction of conservatives learning how to be political. Presumably the mistakes made with Proposition 1 were lessons learned for Proposition 13. Further, Uhler learned that the executive branch was its own political field, within which rival factions of conservatives warred with each other. Just as James Landis brought beautifully illustrated maps along to the White House when he wanted to persuade Harry Truman how to award an international air route, Uhler wrote a memo for Governor Reagan that sounded the world-historical themes the Gipper loved, without miring him in details that bored him. The paper also made clear the special appeal of public choice theory for conservatives like Uhler. It allowed them to recast rather than renounce a progressive understanding of politics as a battle between the people and the interests. The so-called “public interest” advocates were, in their telling, the self-interested defenders of rent-seeking “takers” seeking to use government to mulct America’s many “makers.”
I did have two thoughts for Gourse to consider in completing his project. First, I hoped he would show how public choice theory was translated into constitutional doctrine. As Reuel Schiller showed for conservative judges passing on deregulatory orders during the Reagan and Bush administrations, legal institutions powerfully shaped how economic thinking made its way into law. After reading Gourse, I can see how an early encounter with public choice theory might have inclined Justice Kennedy to write separately in Kelo, in which he called for a higher scrutiny of exercises of the eminent domain power in certain circumstances. Then again, he concurred in the result, which upheld the exercise in question. Similarly, in 1987 Judge Richard Posner, joined by Judge Frank Easterbrook, drew upon public choice in casting Chicago’s landlord-tenant ordinance as a self-interested grab by privileged economic groups–rather implausibly, it seems, after Lior Strahilevitz’s essay on the opinion. Even so, the two judges still felt obliged, under rational basis review, to uphold the ordinance. Perhaps only with the founding of the Institute for Justice in 1991 was the requisite legal capacity devoted to converting public choice into doctrinal arguments that stood a chance in courts of law.
My second thought went to the danger of focusing on public choice to the exclusion of other sources of conservative thought. Public choice did provide conservative lawyers with an important new theory, but they did not abandon the older, natural rights tradition. To be sure, natural rights took a beating in the constitutional battles of the Thirties, when New Deal cast it as an apology for corporate power. But Blackstone’s claim that “the public good is in nothing more essentially interested, than in the protection of every individual’s private rights” survived to galvanize many conservatives. For example, in teaching me property law at the University of Chicago in 1981 (and working out the argument of Takings (1985), Richard A. Epstein drew far more on the natural rights tradition than law-and-economics. Natural rights thinking remains very much alive in the constitutional scholarship and litigation of my Georgetown law colleague Randy Barnett and the popular constitutionalism of the Tea Party.
Staszak and Hughett shifted the panel from conservatism to America’s peculiarly legal form of liberalism, in which reformers cast their demands as judicially cognizable rights. They capture conservatives’ attempts to limit legal liberalism by keeping claims of rights from getting into court. They focus not on the great dramas of public law, such as changing interpretations of the equal protection clause or the civil rights acts, but what are, for most people, less pulse-quickening matters, the reach of the Federal Arbitration Act of 1925 and the exhaustion of administrative remedies.
Irony pervaded both papers. Hughett recounted how “a mechanism designed [in the 1970s] to improve life behind bars” was transformed in the 1980s into “an obstacle that inmates had to overcome to access the courts.” Staszak wrote that although many liberals had championed alternate dispute resolution, commencing in the late 1980s, a conservative majority on the Supreme Court lent its aid to commercial interests seeking “to restrict access to courts.”
Yet neither stops with irony. Both try to understand why liberals looked for alternatives to the courts on which so many had pinned their hopes. Already in the 1970s, it seems, they were beginning to see that a claim of right against the state or corporate power wasn’t going to effect change without the legal and judicial resources to back it up. They discovered, as my Georgetown law colleague David Super said of another blast from the Seventies, the implied warranty of habitability, “hard-pressed courts can and do ration adjudicatory resources and otherwise behave in many of the same ways as administrative agencies.”
In such an environment, usually only tenants lucky enough to win the legal aid lottery have been able to convert a right into an even modest improvement in their material well being. Similarly, Hughett found that already in 1973 a staff attorney at the North Carolina Civil Liberties Bureau saw that prisoners’ claims of rights had exceeded the judiciary’s capacity to process them fairly. Staszak showed that Lawrence Friedman, who remains faster on the draw than most of us, spotted the problem in 1967 and that Alan Housemen told his fellow antipoverty lawyers to consider giving ADR a try in 1978.
My takeaway from Staszak and Hughett’s two papers was not that liberals did or should have givenup on the courts or that liberals have surrendered alternative dispute resolution to conservatives. To the contrary, Staszak quoted a report on binding arbitration that the Consumer Financial Protection Board released in December 2013. What was news to me–although, perhaps not, as a comment from Reuel Schiller during the Q&A suggested, to anyone who had read much of the history of post-New Deal liberalism–was that dissatisfaction with legal liberalism, on the left as well as the right, was at least as important a turning point as, say, the deregulation movement in the political history of American law in the final decades of the twentieth century.