Professing Politics: A Good Way and a Not So Good WayMaimon Schwarzschild
Here is Cass Sunstein’s very interesting article on Burkean jurisprudence, published a few weeks ago in the Michigan Law Review. Sunstein, a left-wing University of Chicago law professor, says he takes Burkean concerns seriously, not because the past should have any mystical authority, but because he recognises – or at least he realises that many people believe – that human experience and judgment accumulated over time is often (not always) wiser than the new and necessarily less tested ideas of reformers. Sunstein, fairly enough, contrasts Burkeans with constitutional originalists, since post-Constitutional history and precedent, important to Burkeans, often long since evolved (or were wrenched) away from the original meaning. He also contrasts Burkeans with “perfectionists”: conservatives as well as radicals who want to “do the right thing” regardless of what people have grown accustomed to.
Sunstein is writing with a political motive, of course. There is more than an undertone in the article that “Burkean” caution should keep conservative judges from overturning liberal, Warren (and Burger) Court decisions – whether on abortion, affirmative action, “Miranda” policing, the regulatory power of government agencies, and lots of other things. But Sunstein recognises that conservatives can’t just accept the sort of ratchet that says: “You’re conservatives, so when you’re in power you shouldn’t introduce your ideas – that would be change; but since you’re conservatives, you’re obliged to conserve everything we liberals introduced, however wrong you thing it was, when we were in power”. Sunstein tries to make a serious case for what sorts of liberal “traditions” conservatives should conserve, and what sorts they needn’t.
Sunstein’s article is thougthful, respectful of conservative ideas, and very much worth reading. He surely has an “agenda”: that conservative Justices should vote to maintain most if not all of the left-liberal legal revolution of recent decades. But he puts it pretty carefully and undogmatically.
If Cass Sunstein’s Burke article is an example of politically motivated scholarship at its best, here is something that seems less admirable to me: an impossibly deferential if not fawning review, in a recent issue of the Yale Law Journal, of Justice Stephen Breyer’s “Active Liberty: Interpreting Our Democratic Constitution”. The reviewer? Cass Sunstein.
Breyer’s book, to put it charitably, is a thin and conclusory celebration of liberal court decisions. (Here is a politely devastating review of the book, in the same issue of the Yale Law Journal, by Richard Posner.) Sunstein surely knows that this isn’t a great book. The suspicion is inescapable that Sunstein is flattering Breyer in order to encourage him to carry on the Good Fight. As with Sunstein’s ludicrous but straightfaced comparisons of Sandra Day O’Connor with Felix Frankfurter once O’Connor swung left in the years before she retired, the message to the Justices evidently is “Please us politically and academic acclaim will be yours”. This sheds little honour on Breyer – or on Sunstein.