Reviewed by Dennis J. Coyle, Department of Politics, Catholic University of America. Email: coyle@law.edu .
Politics, it has been said, is the authoritative allocation of values. For Owen Fiss, those “public values” are embedded in the law, and it is the job of the judge to discover and apply them, undeterred by the controversy and difficulties that might ensue. In The Law as It Could Be, we see the law as it was and, to Fiss, should be again. His is a vision of law at the zenith of the civil rights movement, buttressed by an earlier common law faith in the capacity and legitimacy of the independent judge. His faith arose from the ashes of the law left by the Legal Realists and Carolene Products-brethren of the New Deal, as Progressives began to look to the courts to achieve social change long denied by the legislatures in which they had previously placed their hopes. And, it is a faith unsullied today by postmodern skepticism or the sounds of populist democracy emanating from left and right. To read Fiss is to return to judicial activism before the fall, when the transformative power of law was intoxicating to student and scholar alike. This spirit lives on in lawsuit and classroom, of course, but it is more difficult to sustain in the face of a counterrevolution in the courts, bitterly divided confirmation battles, and the costs, countersuits and unfulfilled aspirations that are part of the legacy left by the large “structural reform” cases favored by Fiss. The Law as It Could Be should be a provocative book for anyone following the law, but it may be especially welcomed by those wearied by a constant stream of political attacks on judicial activism. Fiss states his case boldly and repeatedly, without apology.
Fiss is refreshingly straightforward about the task he sets for the judge – giving meaning to the sweeping public values, especially equality, he finds embedded in the law. He asserts that in an era dominated by large bureaucratic organizations the courts must restructure those institutions in line with fundamental values. This is similar to the argument made by the Progressives for the transformation of liberalism from a doctrine of limited government to one of larger, activist government to counter the inordinate power of corporations. But Fiss does not share the naive or disingenuous Progressive expectation that enlightened government administrators will naturally further the public good. Rather he sees government institutions, such as prisons and hospitals, as the major target of structural reform suits. Such litigation thrusts the judge into the details of program administration and can entail complex and intrusive remedies. He recognizes that such an authoritative role for the courts, often contrary to elected institutions or their appointees, will be controversial and problematic, but does not shy away from it. That is a refreshing change from the insecurities [*212] of activism advocates who hide their doubts in tortured claims of judicial democracy.
The defining moment of Fiss’s judicial vision was BROWN v. BOARD OF EDUCATION. He recognizes the difficulties courts subsequently faced in designing and implementing effective remedies but emphasizes that, were it not for the insistence of the Supreme Court in giving real-world meaning to the abstract constitutional value of equality, the eradication of segregation, and of the Jim Crow system more generally, would have been more tentative and incomplete. Brown is the high water mark of judicial activism, earning unanimous support in the Court and nearly universal support among legal scholars and historians, modest caveats about reasoning and remedies aside. Since then, the grand consensus about the positive role of courts in social change has fractured, eroded by controversies over busing, affirmative action, redistricting, and so on. For Fiss, Brown is only the beginning, and he devotes most of the book – a collection of papers written over a 25-year period – to defending large structural reform and class action suits.
The long first chapter of the book, “The Forms of Justice,” was originally published as the foreward to the 1979 Supreme Court issue of the Harvard Law Review, and is the anchor for everything that follows. It is here that Fiss first lays out his defense of the “structural reform” lawsuit, and especially injunctive relief, to transform bureaucratic public institutions. In succeeding chapters he roots his jurisprudential vision in a conception of society dominated by large bureaucracies and dismisses an older individualist conception that would limit courts to dispute resolution. He defends his faith in normatively driven judge-made law against skeptics on the left and right, including law and economics, critical legal studies, and especially Stanley Fish.
Fiss closes with a defense of reason in law against emotion, then a critique of BUSH v. GORE, and a brief afterword. With the possible exception of the penultimate chapter, this collection of essays hangs together surprisingly well, as Fiss is consistent and persistent in developing his arguments for activism. The chapter on BUSH v. GORE might more appropriately serve as the introduction to a new work, rather than the conclusion of this one, because it raises more issues than it resolves, especially in a book that celebrates rather than savages the courts. For as Fiss quotes Sandy Levinson, BUSH v. GORE triggered “the deepest intellectual crisis—at least for people who profess to take law seriously—in decades” (p.233). In other words, Bush occasions a profound rethinking of the role of courts and law, rather than an epilogue. Given that Fiss has devoted an entire book to defending an activist judiciary, the implications of making an exception for Bush merit more attention.
Many readers will find Fiss inspiring, as he presents a thoughtful defense of liberal activism, similar to the way that John Rawls provided a philosophical rationale for the welfare state in liberal terms, easing uneasiness about whether Progressives could love the state and freedom too. But Fiss weakens his argument by overstating his case—an occupational hazard of lawyers. He [*213] exaggerates the bureaucratic character of modern life, the universality of his constitutional vision, the potential to achieve those values, the insignificance of unanticipated consequences and competing values, the disciplining effect of the interpretive community, and the sagacity of judges.
Fiss’s prescriptions for the role of law follow from his understanding of the world as increasingly and inevitably bureaucratized. He dismisses an older model of adjudication as the settling of disputes between individuals as “rooted in a world that no longer exists. . . . [T]he market has been replaced by the hierarchy, the individual entrepreneur by the bureau. . . . Almost every phase of American life has come to be dominated by large-scale, complex organizations” (pp.37, 67). This rationale for activism mirrors the argument put forward in the 1960s by then-current and future California Supreme Court justices, Matthew Tobriner and Joseph Grodin, that in “a complex, interdependent society” the individual is increasingly regulated and consequently judges are obligated to “impose duties and obligations on the basis of status or relationship” (1967, at p.1249). Courts should search “for what is true, right or just,” writes Fiss, and then “confront the betrayal of our deepest ideals and be prepared to turn the world upside down to bring those ideals to fruition” (pp.8, 102). In these post-modern days of division and doubt, Fiss is almost breathtaking in his sweep and certainty. But his description of the world seems overstated in an era of instantaneous communication and rapid transportation, of job jumping and spouse switching. Fiss’s argument outruns his evidence but should not detract from his more modest and plausible contention that officials in institutions such as schools, hospitals and prisons that house and constrain persons cannot be trusted to fully protect their rights and interests.
For Fiss, the deepest of our public ideals is equality, which replaced liberty “as the central constitutional value” in the 1960s (p.151), and he portrays the ascendance of equality as virtually universal and uncontested, at least in the legal community. All that remains in question is the ability to “construct a new social reality” (p.54), not its rightness. But the Constitution embeds many principles and values, such as limited government, federalism, liberty and equality, which may conflict, and so the legitimacy of egalitarian activism will always be contentious. On this point Robert Cover seems more candid. Fiss, he writes, “supposes that these achievements [of institutional transformation] emerge out of a shared community of interpretation. . . . I support those efforts because . . . I am sufficiently committed to them to join with others in imposing our will on those who disagree” (p.92). The reality of value conflict weakens the case for the effectiveness of the interpretive community of judges and scholars as a sufficient constraint upon judge-made law, as agreement may be mistaken for proof. Conservative readers, for example, may find ironic the lamenting over BUSH v. GORE, as if that were the first time the Court had eroded its legitimacy by making a contentious ruling of wide import based on debatable constitutional reasoning. Evidently Fiss does not read FIRST THINGS.
Fiss writes in the spirit of John Marshall, sweeping the reader along with vigorous [*214] argumentation. And like Marshall he largely succeeds, although his overgeneralizations cannot expunge the seeds of doubt and counterargument. It is nonetheless refreshing to read a vigorous defense of the law. I fear that in these days of postmodernism on the left, faux-democracy on the right and rational choice cynicism in the center, we are undermining the legitimacy of the courts by claims that law is only politics carried on by other means. Fiss unapologetically makes the case that law is different and that judges can rise above interest in the pursuit of legal values, a task that other institutions are structurally unsuited to fulfill. The case for law has been undermined by a century of attacks and counter-reactions to activist rulings. Fiss reminds us of the imperfect but significant normative constraints that operate upon judges, particularly the need to deliberate upon and articulate reasons that will be critiqued by the interpretive community. The application of values and principles is never precise, and the interpretive community is never entirely objective or omniscient; thus, this constraint is never perfect, and the resulting ambiguity of interpretation breeds skepticism on left and right. But ambiguity does not disable constraint, and Fiss aptly decries the corrosive cynicism of the critical legal theorists.
While the vulnerability of the “crits” is that they exaggerate indeterminacy, Fiss exaggerates determinacy, overstating the certainty of his constitutional vision. The reality falls somewhere in between. Judge-made law is an imperfect but indispensable element of liberal constitutionalism, and it is a mistake to see courts as the enemy of freedom or even democracy. A court is constrained in ways that politics is not; this is obvious to any judge, and too often cavalierly dismissed by critics and scholars. In the hyper-democracy of today, where value disputes are often reduced to politics and public opinion, we are in danger of eroding appreciation of the most fundamental element of a stable polity—not democracy, not even equality, but the rule of law itself. The role of the judge in that is essential, and Fiss helps remind us of that.
REFERENCE:
Tobriner, Matthew O. and Joseph R. Grodin. 1967. “The Individual and the Public Service Enterprise in the New Industrial State.” 55 California Law Review 1247-1268.
CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954)
BUSH v. GORE, 531 U.S. 98 (2000).
UNITED STATES v. CAROLENE PRODUCTS, 304 U.S. 144 (1938).
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© Copyright 2005 by the author, Dennis J. Coyle.