The history of the Supreme Court’s protection of the powerful

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Laurence Tribe, who turned 80 last year, was one of the most eminent liberal jurists of the past half-century. A professor to John Roberts, a mentor to Barack Obama, and a lawyer who has appeared dozens of times before the Supreme Court, Tribe has also published numerous books on the Constitution and the history of the Court. More recently, Tribe — despite the reverence with which he initially wrote about the Court — has been highly critical of what he sees as its growing right-wing tilt and politicization by Republican-appointed justices. Tribe has also established himself as a prolific news commentator, both on television and on Twitter (where he has over a million followers), including launching caustic attacks on former President Donald Trump, who he accused of committing multiple crimes.

I recently spoke by phone with Tribe, currently professor emeritus at Carl M. Loeb University at Harvard, several days after Judge Samuel Alito’s draft opinion arguing for the overturning of Roe v. Wade. During our conversation, which has been edited for length and clarity, we also discussed his impressions of Justice Roberts over the decades, his changing views on the Court’s role in American life, and his how he looks back on his controversial work for the coal industry.

How has your conception of the Supreme Court as an institution changed over the past fifty years?

I would say that because I’m part of the generation that grew up on Brown v. Board of Education and the Warren and Brennan Court, and identified the Court truly with the improvement of the functioning of representative government through redistributive decisions and the protection of minorities of various kinds. I saw the Court through somewhat rosy 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, to reflect on how the Court actually preserved and protected the power and corporate wealth more than it protected minorities for much of our history, and how it basically gutted reconstruction efforts, and I focused more on cases like Dred Scott and Plessy v. Ferguson and Korematsu.

And in recent years, as the Court returned to its characteristic posture of protecting those who did not need much protection from the political process but who already had a lot of political power, I became increasingly concerned about its undemocratic character and anti-human rights record. I continued to want to make sense of the Court’s doctrines. I wrote a treatise which was very frequently quoted around the world and which shaped my teaching on how the Court’s ideas in various fields could be brought together. But then, after doing the second edition of this treatise, and a lot of people relied on it, I decided [after the first volume] of the third edition, basically, to stop this project.

What were you talking about in the first two editions?

The first was the first effort in probably a hundred years to bring together the whole body of constitutional law. And this has led to a revival, or a flowering, of many writings on constitutional law, and more methodologically oriented writings, with different forms of interpretation. I was very excited about this project, and [the second edition] pursued him. Most of what I did was to see links between different domains. I was writing about business regulation and seeing themes arise in the areas of civil rights and civil liberties. Or I would write about the separation of powers, and I would see problems that arise elsewhere.

And I was always trying to find consistency, because my training 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 moved rather abruptly from mathematics to law. And so, in my treatise, I developed what I saw as seven different models of constitutional law. I’m always fascinated by different perspectives, goals and models. I never thought that law and politics were strictly separated, and the efforts of people like Steve Breyer to say that we shouldn’t admit that constitutional law is largely political always struck me as misleading. That said, I have nevertheless noted efforts to be consistent and to avoid hypocrisy on the part of the Court. But these things started to get 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 me wrote replied with a letter, which was later published in various places, saying, “I’m not going to keep doing this. And here’s why. It was a letter that described how I thought constitutional law had really lost its consistency.

On some level, you say something has really changed with the court. But earlier you said that the Court has always had a habit of protecting the powerful and not protecting the rights of minorities or the weak. So did anything change, or did the Court just have that brief period, after World War II, where you saw it as different before going back to its normal posture?

I think there has always been a strong ideological undercurrent, but the rising ideology of the 1960s and 1970s was an ideology that I could easily identify with. It was the ideology that said that relatively powerless people deserved to be protected, by an independent branch of government, from those who would trample them.

To the right. The Warren Court was also ideological; it happened to be an ideology 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 goals of the law, and those goals were moral and political. No questions about this. I am not saying that somehow the liberal view of constitutional law is free from ideology. There was, however, an intellectually coherent effort to connect the ideology to the whole theory of what the Constitution was for and what the Court was for. Primarily, the Court is an anti-majority arm, and it’s there to protect minorities and make sure people are fairly represented. I could identify with this ideology. It made sense to me and I saw elements of it in various areas of doctrine. But as that fell apart and the Court reverted to a very different ideology, one in which the Court was basically there to protect the interests of owners and to protect businesses and keep the masses at bay – it’s also an ideology, but it was not being worked out in doctrine in a way that I found even coherent, let alone appealing.

Maybe I’m wrong about this, but I see more internal contradictions and inconsistencies in the doctrinal currents of the people who came back to power with the Reagan administration and the Federalist Society. I’m not the person who gives meaning to what they do, because it doesn’t make sense to me. Even if I could play the role I think I played with a version that I find morally more appealing, it’s a project that I would consider somewhat diabolical and wouldn’t want to be part of.

I’m not trying to paint the picture that says everything was purely logical and mathematical and apolitical and morally neutral in the good days of the Warren era, and inconsistent and ideologically driven at other times. I think that would be an unfair contrast. So I hope what I’ve told you makes things a little clearer.

You wrote instead striking piece in the New York Book Review recently titled “Politicians in Robes,” where you take issue with Breyer’s continued belief that the Court can be apolitical. How should we view the Court now? I think there’s a tendency to say, “These guys are politicians, and they make partisan choices like anybody else”.


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