Research Matters: Justin Driver on "Reactionary Rhetoric and Liberal Legal Academia"

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Justin Driver, the Herbert and Marjorie Fried Research Scholar, wrote “Reactionary Rhetoric and Liberal Legal Academia,” which was published earlier this year in the Yale Law Journal. In it, the constitutional law scholar explores opposition to the 1964 Civil Rights Act as a way of better understanding the reactions of today’s left-leaning law professors to high-profile U.S. Supreme Court decisions.

Q. Why did you write this paper?

A. On the fiftieth anniversary of the 1964 Civil Rights Act, I was interested in examining the arguments that opponents offered when they attacked the legislation. In prior work, I had examined high-profile opposition to Brown v. Board of Education, and I found it to be quite distinct from how it is generally remembered—and the same was true in this context. Prominent opponents—like Robert Bork, Barry Goldwater, and William Rehnquist —did not mount frontal assaults to the goals of the 1964 Civil Rights Act and assert black people are inferior. Instead they opposed the measure by drawing upon what economist Albert Hirschman calls the “rhetoric of reaction,” meaning they appealed to notions of futility (the problem can’t be solved), perversity (the solution will make the problem worse), and jeopardy (the solution will jeopardize some earlier, more important achievement).That insight prompted me to analyze how this rhetoric now appears in liberal legal academia, which is not a place where one would expect to encounter these sorts of ideas with such frequency.

Q. Why is this topic important?

A. Examining history can sometimes shed light on our own times. I hope this piece will help people to better understand opposition to today’s civil rights ventures and also to contemplate how that opposition seems likely to be remembered. I also wanted to warn judges about the dangers of internalizing reactionary rhetoric. 

Q. Why is the opposition to the Civil Rights Act remembered differently than it occurred?

A. The Civil Rights Act of 1964 has become a sacrosanct piece of legislation. It is easier to remember the people who opposed the legislation as being crude and unsophisticated, and angry and defiant—but that’s not how mainstream opposition tends to appear.

Q. Was it characterized more accurately at the time? Has the memory evolved?

A. It’s very hard in real time to call reasonable-seeming people bigots and oppressors. That’s something that is much more easily done five decades later.

Although Social Security was intensely controversial during the 1930s and Brown v. Board of Education was intensely controversial during the 1950s, virtually nobody within the mainstream today doubts the legitimacy of that legislation or that opinion. Once a piece of legislation or a judicial decision achieves a wide-enough embrace, then people think only a lunatic or a crank could have opposed it even at the time, and that’s often not the case.

Q. Has the degree of reactionary rhetoric increased?

A. Today’s legal liberals invoke reactionary rhetoric when discussing the Supreme Court’s ability to deliver social reform with a great deal more frequency than they did during, say, the 1970s.

Q. Why?

A. Some of the increase in reactionary rhetoric must be attributable to a generational account.  Where the earlier generation of legal scholars celebrated the Warren Court’s liberal victories, the subsequent generation sought to revise that account.  And reactionary rhetoric seems to demand usage in that context.  I should note: I’m making the claim that liberal law professors are using reactionary rhetoric in a very limited scope, with respect to the courts. It’s not true, of course, that legal liberals are reactionaries in any broad sense of that term. They do believe that social problems can be remedied, but they also believe that the judiciary is often ineffective at delivering those reforms. Sometimes, reactionary rhetoric is employed when the courts actually can be effective at solving a problem, and one of the ways I try to make that point is to survey the initial reactions to Romer v. Evans from 1996, when some liberal commentators contended the Court is going to make this problem worse, or it’s unable to solve these sorts of problems, or it’s going to jeopardize notions of democracy. But the Romer decision turned out to be extremely effective, and amounted to the Court’s important first step in the march toward gay equality.

Q. Why does the rhetoric matter?

A. If judges internalize reactionary rhetoric, it may inhibit them from issuing successful decisions like Romer that make for a more egalitarian society.

Q. Do you see that happening?

A. I think we have seen far more hesitancy than is warranted in the context of same-sex marriage.  When the Supreme Court had an opportunity to issue a decision declaring that it’s impermissible for states to prohibit same-sex couples from marrying, they shrank from doing so. Some of the justices’ language in their commentary off the bench, including Justice Ruth Bader Ginsburg’s, have appealed to reactionary rhetoric, suggesting that if the Court gets out too far ahead of the American people then it will encounter serious problems and perhaps end up setting the movement back. It’s a classic “perversity” argument. Justice Ginsburg has made similar arguments about the Court’s opinion in Roe v. Wade.  So reactionary rhetoric does seem to play a significant role in shaping judicial attitudes toward actual cases.