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Mr. Tribe is one of the most respected commentators on the Supreme Court and advocates for the Left's vision of the Constitution. Had Democrats not turned the Bork hearings into a partisan carnival act, he would most likely be Justice Tribe today. But he has written much more than enough in a controversial vein to provide the sort of fodder for Republicans that would have made his confirmation impossible. Instead, he is bedded in at Harvard Law and continues to write and speak on the legal issues of the day from that safe haven. His American Constitutional Law is one of the most widely cited texts in the field and he used to update it regularly. But, he reveals here, he set aside a new update because, as his title suggests, the future path of Supreme Court rulings has become too uncertain for him to write about authoritatively. This is the major theme of the book and it results in a more even-handed approach to the justices and their rulings than we might otherwise expect from him.

The alliances on the Roberts Court vary from topic to topic and even case to case--as witness, most famously, the Chief himself writing the opinion upholding Obamacare. Additionally, the Court just finished a term in which more than half its rulings were unanimous, the most since 1953, even though the Left accuses it of being the most activist rightwing court in the nation's history. So we have a supposedly arch-conservative chief handing a supposedly socialist president a massive victory and we have four liberals siding with the reactionaries most of the time. Curious, eh? It's almost as if our partisan framework for understanding the Court is falling apart....

Not convinced? Consider one of Mr. Tribe's own editorial, regarding one of this term's most bitter defeats for the Left,
The Supreme Court Was Right to Allow Anti-Abortion Protests (LAURENCE H. TRIBE, JUNE 26, 2014, NY Times):

Even as a committed supporter of a woman’s — increasingly imperiled — right to choose, I must acknowledge that the Supreme Court got it right on Thursday.

In McCullen v. Coakley, the Court unanimously struck down a Massachusetts law setting a 35-foot buffer zone around abortion clinics. While the buffer zone was enacted to ensure the safety of women seeking abortions, it also restricted the peaceful activities of the plaintiff, Eleanor McCullen, and other opponents of abortion, who sought to stand on the sidewalk and urge those women not to make what they see as a tremendous mistake.

That I don’t share Ms. McCullen’s views is beside the point. The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Note that this one too was unanimous.

At any rate, rather than attempt to paste a picture of a steady rightward march onto the history of the Roberts Court, Mr. Tribe and Mr. Matz treat a number of different areas--Racial Equality, Healthcare, Campaign Finance, Speech, Guns, Executive Power, Privacy, the reach of the Constitution, and Access to the legal system--in isolation, and discuss he often confusing trends and counter-trends at the Court regarding each area. What emerges is a court where 5 members generally favor more conservative rulings, but are infused with enough libertarianism to often end up making cause with the Court's four liberals. And we get 4 justices who generally favor more liberal readings of the Constitution, but who--at the End of History--are no longer as hostile to capitalism in particular as we once expected the Court's left-wing to be. It is this fluidity between the two wings that makes their rulings so interesting, so often surprising, and which provides rich material for the author's to dissect and discuss.

I wonder though if there isn't a framework that they could have used that would have made their somewhat inchoate analysis make more sense. I think no one would argue with the idea that the Stone, Vinson, Warren and, to a degree, Burger courts departed from much of the 19th and early 20th Century understanding of the role of the Supreme Court and made it an activist institution as well as making it a rubber stamp for a more activist federal government. While FDR failed in his bid to pack the Supreme Court with liberal justices who would rule as he wished them to, the Court's swing to the Left began as early as 1937, with Justice Owen Roberts' "switch in time that saved nine." And it probably didn't end--if indeed it can be said to have fully ended even now--until William Rehnquist took over as chief in 1986. [I would argue that it will require the replacement of Justice Kennedy for the swing to truly be at an end.]

This long period produced innumerable instances where a majority on the Court looked at the Constitution and discovered rights and limitations there that no Founder, no other Court and few commentators had discerned in the prior 150 years of the Republic. Whether one favored the results the Court arrived at our not, no one could claim that they arose naturally from the text, since they sprang full-blown from various justices' (and their clerks') heads. To take just one obvious example, we may as a society endorse the notion that all criminal suspects should be "read their rights" but it is undeniable that this was not a requirement of our Constitution. Rather it is a requirement imposed by a Court in its Miranda ruling. The unwillingness of the Court, especially in the 50s and 60s, to allow the text as written and historically understood to prevent it from serving its members vision of social justice led it to depart from that text and create its own legal doctrines. Inevitably, this laid the groundwork not just for an eventual swing back towards the historical and textual reading of the Constitution, but one that would not be overmuch concerned with precedent either. As the conservative wing steadily moves Constitutional Law back towards more traditional positions, it is not always going to do so in careful and precisely reasoned ways, not least because prior courts eschewed such methodology in veering off course in the first place.

Let us consider again an opinion piece by Mr. Tibe, regarding one of this term's rulings [emphasis added],
    -ESSAY: In attacking unions, the Roberts court forgets a key lesson of the New Deal. (Laurence H. Tribe, 6/30/14, Slate)

Most people don’t associate freedom of speech with a deregulatory economic agenda. But that agenda is an untold story of the Roberts court, and it’s vital to understanding this morning’s decision in Harris v. Quinn.

Harris concerns the mandatory “fair share” fees that most unions charge all employees, including nonmembers, to support collective bargaining. These fees prevent free-riding. Unions are required by law to bargain on behalf of members and nonmembers alike, all of whom benefit from collective bargaining. If some employees could simply decline to pay to support collective bargaining, all would have the incentive to similarly opt out, thereby undermining the union and harming all employees. It’s a classic case of the free-rider problem.

As Emily notes, for public-sector unions, the court unanimously found nearly four decades ago that this free-rider reasoning trumps First Amendment concerns about freedom of speech and association.
The problem is obvious. Though the Constitution is nearly 250 years old, the supposed right in question was only invented within the past forty years. To dispose of it now does not disfigure the long history of Constitutional Law, only excises a blemish of brief duration. Wherever one Court imposed its own personal feelings on the Constitution, instead of following the text, it left itself open to being overturned by a future Court with different feelings. And, even if originalists and advocates of tradition and the text look somewhat hypocritical when they engage in a sort of reverse activism to undo the activism they once decried on the part of the Left, the stakes are too high for anyone to seriously think they'll accept defeat as the price of consistency.

Ultimately, one suspects that the only uncertainties surrounding the modern Supreme Court is the pace at which it will drift back towards a more traditional reading of the Constitution and the vote counts in the rulings where it effects this return to historical norms.


Grade: (B)


See also:

Laurence Tribe (2 books reviewed)
Laurence Tribe Links:

    -FACULTY PAGE: Laurence Tribe (Harvard Law School)
    -WIKIPEDIA: Laurence H. Tribe
    -BOOK SITE: Uncertain Justice (MacMillan)
-ESSAY: The Supreme Court Was Right to Allow Anti-Abortion Protests (LAURENCE H. TRIBE, JUNE 26, 2014, NY Times)
    -ESSAY: In attacking unions, the Roberts court forgets a key lesson of the New Deal. (Laurence H. Tribe, 6/30/14, Slate)
-VIDEO: Laurence Tribe on the Roberts Court (BookTV, 6/29/14)
    -VIDEO: Laurence Tribe discusses John Roberts' Supreme Court (Jeffrey Rosen, 6/25/14, ConstitutionCenter)
    -AUDIO INTERVIEW: Laurence Tribe on The Roberts Court (WBUR : On Point)
    -VIDEO INTERVIEW : Laurence Tribe on The Roberts Court (Charlie Rose, BloombergTV)
    -INTERVIEW : Harvard Law Professor Laurence Tribe, in Exclusive Interview, Discusses New Book on the Roberts Court (American Constitution Society, 7/18/14)
    -ESSAY: John Roberts' Supreme Court Is the Most Meddlesome in U.S. History: How radical libertarianism is reshaping the bench (Simon Lazarus, New Republic)
    -ESSAY : Trial by Fury : WHY CONGRESS MUST CURB BUSH'S MILITARY COURTS (Laurence H. Tribe, 11.29.01, New Republic)
    -TRIBUTE : Common Sense and Uncommon Wisdom : A Tribute to Justice Brennan (Laurence H. Tribe, Harvard Law Bulletin)
    -ESSAY : Toward a Less Perfect Union [Defense of Marriage Act] (Laurence H. Tribe, New York Times, May 26 1996)
    -ESSAY : Justice Taken Too Far [Elian Gonzalez] (LAURENCE H. TRIBE, The New York Times, Ý April 25, 2000)
    -ESSAY : Deadlock : What Happens if Nobody Wins (Laurence H. Tribe and Thomas M. Rollins, October 1980, Atlantic Monthly)
    -ESSAY : Well-Regulated Militias, and More (Laurence H. Tribe and Akhil Reed Amar, October 28, 1999, NY Times)
    -ESSAY : Judge loses nerve in penalty phase (Laurence H. Tribe, July 1997, ÝCalifornia Law Journal)
    -ESSAY : The Internet vs. the First Amendment (LAURENCE H. TRIBE, April 28, 1999 , NY Times)
    -DISCUSSION : THE HIGH COURT : The high court term ended with decisions on many high-profile cases, ranging from abortion to school prayer. Margaret Warner leads a discussion with lawyers about the Supreme Court's 1999-2000 session. (Online Newshour, June 29 , 2000)
    -STATEMENT : Defining "High Crimes and Misdemeanors": Basic Principles (Prepared Statement of Laurence H. Tribe, House Committee on the Judiciary, Subcommittee on the Constitution, November 9, 1998)
    -STATEMENT : global terrorism Ý(Statement of Laurence H. Tribe, Before the Senate Judiciary Committee, December 4, 2001)
    -ARTICLE : Scholar's shift in thinking angers liberals (Tony Mauro, 08/27/99, ÝUSA TODAY)
    -ESSAY : Seminal Tribe : The obvious choice for Gore. (Robert Alt, 12/04/00 , National Review)
    -ESSAY : The Abortion Litmus Test (Thomas L. Jipping, February 16, 2001, Daily Catholic)
    -ESSAY : The Widening Ripples of 'Roe v. Wade': a Reading List (N.E.H. HULL and PETER CHARLES HOFFER, November 2, 2001, Chronicle of Higher Education)
    -ARCHIVES : "laurence Tribe" (Mag Portal)
    -ARCHIVES : Laurence H. Tribe (NY Review of Books)
    -REVIEW : of ON READING THE CONSTITUTION by Laurence H. Tribe and Michael C. Dorf (Richard A. Brisbin, Jr., Law and Politics Book Review)
    -REVIEW : of A Matter of Interpretation: Federal Courts and the Law, by Antonin Scalia, with Ronald Dworkin, Mary Ann Glendon, Gordon S. Wood, and Laurence Tribe, edited by Amy Gutmann (Michael Greve, Reason)
    -REVIEW : of REASON AND PASSION : Justice Brennan's Enduring Influence. Edited by E. Joshua Rosenkranz and Bernard Schwartz (Alex Kozinski, NY Times)
    -AWARDS : Law School's Tribe awarded Spirit of Justice Award (9/27/01, Harvard Gazette)
    -HONORARY DEGREE : Doctor of Laws (Colgate University)
    -REVIEW: of Uncertain Justice : The Roberts Court and the Constitution by Laurence Tribe and Joshua Matz (Stephen Wermiel, Washington Post)
    -REVIEW: of Uncertain Justice (Jeff Shesol, NY Times Book Review)
    -REVIEW: of Uncertain Justice (Alexander Tsesis, Chicago Tribune)
    -REVIEW: of Uncertain Justice (Publishers Weekly)
    -REVIEW: of Uncertain Justice (Kirkus)
    -REVIEW: of Uncertain Justice (Jim Newton, LA Times)
    -REVIEW: of Uncertain Justice (Kate Tuttle, Boston Globe)
    -REVIEW: of Uncertain Justice (David Cole, NY Review of Books)
    -REVIEW: of Uncertain Justice (Jeff Bleich, LA Review of Books)
    -REVIEW: of Uncertain Justice (Jeffrey Winn, New York Law Journal)
    -REVIEW: of Uncertain Justice (Hercules and the Umpire)
    -REVIEW: of Uncertain Justice (Jeff Gamso, Gamso for the Defense)
    -REVIEW: of Uncertain Justice (Michael Dorf, Dorf on Law)
    -REVIEW: of
-ESSAY: The Supreme Court: The last bastion of American leadership? : No branch of government is popular these days. But the courts are faring better than the rest. By Matt K. Lewis | July 8, 2014, The Week)

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