FRAMING THE AGENDA: THE EMERGENCE OF REACTIVE SCHOLARSHIP43
With the advent of a more conservative judicial era, liberal legal scholarship that is directed to the federal courts may no longer be feasible. The first stage of such scholarship in this era is likely to be reactive in character. This suggests two issues: Beyond its loss of dominance in the federal judiciary, how did legal liberalism find itself on the defensive? And, what are the problems with reactive scholarship?
The power to define issues entails the power to structure results. This explains, in part, the functional and normative success enjoyed by liberal public law thinkers over the past four decades. But, by midpoint in this decade, constitutional conservatism assumed a say in legal discourse that was both new and decisive. The presence of this new constitutional conservatism has redefined, to a significant extent, the contemporary constitutional debate, allowing conservatives to define the issues and ultimately to control the results.
Whatever else history may make of former Attorney General Edwin Meese's various broadsides44 against the liberal constitutional ethic,45 these attacks helped conservatism to find its way back onto the stage of American constitutionalism.46 Prior to this time, the philosophical product of only a small handful of conservative legal thinkers, such as Alexander Bickel, received much attention, and then only at a safe distance. Edwin Meese and his Justice Department, however, changed that situation by 'polariz[ing] the debate' on individual rights issues47 to the point where two liberal Supreme Court Justices, William Brennan and John Paul Stevens, felt the need to offer public responses48 to the claims and charges made by the legal spokesmen49 of the New Right. Almost overnight, newspapers, periodicals, and academic journals were filled with 'Meese-talk' and seemingly endless liberal responses to it. Throughout it all, the new legal conservatism both increased its ranks and put liberals in the precarious position of taking public stands against the interpretative legitimacy of the constitutional text and the framers' intent--this, while publicly deprecating the need to abide by the legislative will of democratic majorities.
Coupled with the former Attorney General's flamboyant offensive was a more subtle, but nevertheless important, conceptual move. Mr. Meese and his Justice Department had leveled against the liberal legal establishment one significant argument that had already succeeded. In the political arena, the idea had been to depict the 'rights revolution' as yet another example of group lobbying for preferential social privileges. Now, talk of legal rights was equated with 'special interest' lobbying of minorities, women, gays, the poor, and labor.50 The expectation was that such charges would produce in the legal community results similar to those already obtained in the political world.
Indeed, in the political arena, even noted liberal thinkers such as Samuel P. Huntington had argued that the Democratic Party's unyielding commitment to these 'special interests' had catastrophically imperiled the liberal cause, as evidenced by the 1984 presidential election.51 In the face of such liberal charges, and given the surface appeal of such arguments, the 'special interests' characterization placed a powerful rhetorical club in conservative hands. Not surprisingly, such charges prompted liberal politicians to gravitate more and more towards the right of the philosophical and economic spectrum.52 It was this trend in the political arena which constitutional conservatives hoped to transport into the legal arena. Liberal legal theorists, too, so the argument ran, must be made to defend their views against charges of parochialism and self-interest.
