Legal Liberalism in Jeopardy

Yet more troubling for liberals is the prospect that Chief Justice William Rehnquist and Justices Byron White, Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy will solidify their conservative phalanx, thereby cementing the retrenchment of individual rights at the appellate level. There is another scenario that liberal America cannot countenance: the possibility that Justices Brennan, Marshall or Blackmun might not survive another Republican presidential term.

Even if, after the 1988 elections, the Supreme Court is not dominated by conservative jurists, the conservative victory may still be largely realized if the Court commits to a policy of marginalizing core rights-affirming precedents.¹⁹ With such precedents in place, the Reagan- dominated lower federal courts would likely continue, or accelerate, their rightward jurisprudential movement.

Any or all of these developments could change the culture of the law in ways that might fundamentally alter the liberal conception of constitutional justice. Regrettably, in the face of these and other realities, liberal legal scholarship is largely bereft of new concepts of the law suitable to the time. It must be emphasized that the real crisis in liberal scholarship is not caused by the conservative rise in power; nor will this crisis necessarily be cured by any conservative decline in power. Rather, it is that the realities of the Reagan regime have accentuated the shortcomings of such scholarship. If legal liberalism is in jeopardy, as we fear, it is largely because its scholars have not responded in creative and coherent ways to the conditions which have made its post-FDR/Warren Court agenda nearly obsolete.²⁰ Functionally, doctrinally, and theoretically, as we describe in Part IV, legal liberalism may have exhausted itself to the point where the ideas of the past may prevent the realization of the ideals of the future.

Admittedly, the contemporary concepts of 'liberal' and 'conservative' scholarship are necessarily inexact.²¹ Within today's liberal and conservative camps, there are such rifts in beliefs and practices that any definitions will undoubtedly be inaccurate, insufficiently comprehensive, or overlapping.²² It is only possible to align legal scholarship in an imprecise manner with ideological and political values, 'interest clusters' that are themselves broadly characterized. No single definition is likely to describe the beliefs of liberal or conservative scholars as a whole, or to be attributable in full to any individual scholar.

Nevertheless, liberal scholars generally can be distinguished from their conservative counterparts by certain sociopolitical postures. Today's liberals believe that unfettered economic markets are limited in their ability to serve the public welfare, and that government must play an active role in regulating business and in rectifying gross imbalances in economic power and the distribution of wealth. This belief is in stark contrast to the conservative creed of governmental noninterference in private economic and social choices. Liberals are convinced that political and social egalitarianism are the instruments of democratic government, and that democratic government must be trusted as the register of the common good. Thus, although they are not unconcerned with economic liberties, and have promoted protection of the rights of workers and their opportunities for self-determination, liberals place their priority on social justice and civil equality, whereas conservatives place individual economic freedom of business entrepreneurs at the top of their list of concerns. Yet, liberals have never lost sight of the potential for tyranny in big government; typically, they have opposed governmental regulation of the 'private' realms of political and personal choice,²³ again in contrast to conservatives, who are generally willing to cede these points to government.²⁴

So understood, contemporary liberal scholars found political consonance and ideological receptivity in the federal judiciary of the Warren Court years. In the last four decades, the vast bulk of liberal legal scholarship may be characterized by 'court-positivism,'²⁵ particularly in the constitutional field. Liberal scholars treated the progressive constitutional rulings of the federal judiciary as given, needing only to be identified and explained. They directed their efforts to a dialogue with the federal judiciary, defending its activist constitutional review power, and developing its analyses for the protection of civil equality and substantive individual rights.