It’s very sad to learn from Slate’s Mark Joseph Stern what a difficult time liberal law professors are having adapting “intellectually, pedagogically, and emotionally” to the new conservative majority on the Supreme Court. But even beyond Stern’s usual screeching hyperbole and laughable onesidedness, I find it difficult to take seriously the attachment to precedent that these professors supposedly have.
Recall that just over six years ago, when liberals were contemplating the possibility of a progressive majority on the Court, two of the most respected figures in liberal legal academia were openly salivating at the prospect that conservative precedents would quickly crumble.
In this Atlantic essay, Erwin Chemerinsky (now dean of Berkeley law school) found “tantalizing” the thought of a Supreme Court that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller (2008) and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust). And all of that was before Chemerinsky even began briefly sketching his “dream” agenda.
In his infamous blog post “Abandoning Defensive Crouch Liberal Constitutionalism,” Harvard law professor Mark Tushnet urged liberals to “compil[e] lists of cases to be overruled at the first opportunity.” Tushnet wasn’t concerned (as Stern and his professors purport to be) that overrulings would complicate the bar exam or require professors to “overhaul [their] classes.” On the contrary: “What matters”—what ought to be welcomed and celebrated, Tushnet made clear—“is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up.”
More broadly, Tushnet proposed “taking a hard line (‘You lost, live with it’) [rather] than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all.” Liberals should “[a]ggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling,” and they should “[r]emember that doctrine is a way to empower our allies and weaken theirs.” And “Finally (trigger/crudeness alert), f*** Anthony Kennedy.” Except that Tushnet didn’t use asterisks.
I’m sure that there were a lot of liberal law professors in 2016 who didn’t think that the candor of Chemerinsky and Tushnet was tactically smart and who might have advised “Shhhh!” But which professors, if any, disagreed on the substance and urged that conservative precedents they thought fundamentally wrong should be left in place?