Legal Theories Nobody Believes

Steven D. Smith

Copyright (c) 2000 First Things 107 (November 2000): 32-38.

The Warren Court and American Politics. By Lucas A. Powe, Jr. Harvard University Press. 566 pp. $35.

Brennan and Democracy. By Frank I. Michelman. Princeton University Press. 148 pp. $24.95.

The Rehnquist Court and the Constitution.By Tinsley E. Yarbrough. Oxford University Press. 306 pp. $35.

In the Preface to his absorbing history of the Warren Court, Professor Lucas A. Powe, Jr. casually slips in what ought to be a startling confession. The confession begins innocently enough. “I freely admit,” Powe discloses, “that I was once a partisan, celebrating liberal victories and despairing retrenchment.” This of course is what one would expect from a typical law professor, especially one who served as a law clerk to Justice William O. Douglas; a similar stance is evident in the bulk of modern constitutional scholarship, including the books by Frank I. Michelman and Tinsley E.  Yarbrough that I will be discussing. But Powe proceeds to explain that “years in academia . . . have given me a different perspective.” No, he hasn’t joined the Federalist Society. Instead, and more intriguingly, Powe reports that today he does not care whether the Warren Court decisions (with the sole, and unexplained, exception of Brown v. Board of Education) were correct or not. “It no longer matters to me whether the Reapportionment Cases (1964) or Miranda v. Arizona (1966) was rightly decided.”

This admission is an odd prelude to a five–hundred–page exposition of a subject that ostensibly “no longer matters” to the author except as material for historical explanation. After reading his book, though, I suspect that Powe misdescribes himself. His discussion of the Warren Court and its legacy exudes not indifference so much as a sort of paralysis in his capacity for genuine belief. Moreover, although Powe himself does not make the point, he provides ample evidence for the conclusion that this paralysis is itself a natural product of the modern Supreme Court—a conclusion that the books by Michelman and Yarbrough inadvertently confirm. Though varying in aim and scope, these books thus converge in revealing a rarely remarked but deeply troublesome aspect of the modern Court’s performance—its debilitating consequences for the possibility of actually believing in constitutional law.

This claim needs elaboration, so let us start with the shortest but most theoretically ambitious of these books—Frank Michelman’s Brennan and Democracy. Michelman, a former Brennan clerk who as a Harvard law professor has been one of the most formidable legal theorists of the last three decades, is a devoted defender of what is sometimes called “the Brennan Court.” Though never Chief Justice, William J. Brennan was often considered the intellectual moving force for much of the thirty–four years (1956–1990) he sat on the Court, especially under Earl Warren (1953–69) and Warren Burger (1969–86). But does Michelman actually believe in the correctness—or, as theorists often put it, the “legitimacy”—of that Court’s performance? It may seem so, but a close reading of his apologetical essay leaves the matter in doubt.

Michelman’s book reflects a mixture of purposes. It is in part a sort of eulogy, commemorating Brennan’s “kindliness, his humor, his verve, his graciousness, his immense and touching open–heartedness . . . his friendship: a blessing and a joy to all upon whom it fell.” The book also contains a substantial section devoted to defending the Justice against critics who have challenged his liberal credentials by pointing to opinions that employ what look like non–liberal arguments grounded in tradition or communitarianism. Michelman’s defense insists that the suspect arguments were made, in his delicate phrase, “under constraint of rhetorical fashion,” and did not reflect Brennan’s more genuine commitments. He said it, but he didn’t really mean it.

These efforts, though, seem incidental to the book’s larger purpose, which is to enlist Brennan in resisting the charge that modern judicial review is undemocratic. The problem is all too familiar to readers of this journal: beyond clear violations of constitutionally protected liberties, judicial invalidation of laws enacted by elected legislators (or, in the case of ballot initiatives, by the citizens themselves) appears to transgress the premises of democracy. Why, in a nation committed to “government of the people, by the people, for the people,” should five robed appointees—or, often, just one—be permitted to overrule the decisions of the people or their chosen representatives? Answering this question—or, failing that, obfuscating it—has been the main project for legions of constitutional theorists over the last four or five decades.

Perhaps the most common responses have argued, based on a famous footnote in Carolene Products v. U.S. (1938), that democracy itself demands aggressive judicial protection for “discrete and insular minorities” because they are not adequately represented in the political process; or else theorists have elaborated sophisticated (or perhaps sophistical) hermeneutical theories that permit modern judges or scholars to announce conclusions that would have startled the enactors of the Constitution while purporting to be merely “interpreting” the document. But these positions have been cogently criticized, so Michelman takes a different (though hardly untrodden) path.

His basic argument goes something like this. The value of “self–determination” is central to modern political morality, and this means that the law must not simply coerce citizens but instead must elicit their respectful obedience. But respect cannot depend on the citizens’ agreement either with the substantive content of the law or even with the rightness of basic law–making procedures: in a pluralistic society citizens will inevitably diverge over those matters. Still, in order to be legitimate, law must have some “respect–garnering” feature. So what might that feature be?

Michelman’s answer revolves around two claims. First, the operative practice of democracy, the rightness of basic “laws of lawmaking,” and in a sense the theory of democracy itself present philosophical questions that cannot be decided by majority vote. If three–fourths of the citizens say that “democracy means the dictatorship of Napoleon,” their vote would not make it so. Second, for all its fallibility, the judiciary might still be comparatively better at answering these philosophical questions than the electorate as a whole is, or than other governmental institutions are. If so, then citizens have a reason to respect decisions made in accordance with basic laws approved by the judiciary—even if both the substantive decisions and the law–making processes seem unjust or unsound. If you think a parent or a professor is better at understanding some kinds of questions than you are, then you might respect their answers even when the answers make little sense to you. The same deference might be due the Justices, Michelman suggests, with regard to “the procedure–independent standards of basic legal rightness.”

There is much to question in this argument. One may wonder whether or how the argument justifies a host of modern decisions invalidating practices such as graduation prayer or a state motto proclaiming “With God, all things are possible.” For now, though, let us focus on a pivotal doubt: Why should citizens believe that judges are better than others at answering philosophical questions about the rightness of basic laws, or about the meaning of democracy?

Unlike some theorists, Michelman does not ascribe any distinctive philosophical aptitude to judges; nor does he pretend that the answers are somehow encrypted in the Constitution itself and that judges have some special capacity for cracking the constitutional code. Instead, he hypothesizes—and this is the crux of the argument—that judges might have a comparative advantage because they (by contrast to, say, legislators) are “expos[ed] . . . to the full blast of sundry opinions and interest–articulations in society.” In sum, the Justices’ authority to strike down democratically enacted laws derives from their more complete exposure to the range of interests and views in society.

Michelman notes at the outset that his argument is aimed at a “nonspecialist audience,” but I am afraid that one needs specialized training—or indoctrination—to find this claim credible. Think about it: which sort of official is more likely to be “exposed to the full blast of opinions in society”? A member of, say, the House of Representatives, constantly deluged with mail and phone calls that he will ignore at his peril, obligated to deal on a daily basis with journalists and lobbyists and members of the opposing party, subject to frequent campaigns in which he must speak with people at factories and farms and schools? Or a Supreme Court Justice, sealed off in marble chambers from which the press and public are largely excluded, deliberately insulated against electoral responsibility by a system of life tenure, and required to decide only the minute fraction of cases that the Court chooses to hear—cases that will be addressed in a forbidding and highly artificial language used by a specialized class (Michelman’s class) and largely incomprehensible to ordinary people. Is it remotely plausible to suppose that the Justice is more completely exposed to the “full blast” of opinions in society? Could anyone other than an Ivy League professor believe this?

Indeed, can even the Ivy League professor actually believe the argument? Notice the knowing wink that Michelman gives to readers who may be paying attention:

I am not saying that any American ought to believe [this account], I am merely asking you to suppose that you did. You might then find that the fact that you did allowed you to abide by the day–to–day political outcomes of those basic arrangements, out of respect for the arrangements.

Nor does Michelman follow up this curious resort to the conditional mood by offering his own positive endorsement to the argument. Instead, in a sentence that could hardly be more noncommittal, he goes on to say, “I think that Justice Brennan may well have believed something along those lines.”

Indeed, for some pages before this passage, Michelman employs the heavily conditional and second–person usage. This unusual mode of presentation begins at about the point where he turns from criticizing other theorists’ defenses of judicial review and begins to offer a more positive account. At this point we begin to encounter sentences like this: “Here is how it might work. Your starting point would have to be . . .” Or, “Here are four steps that your thought might securely take . . .” Perhaps the second–person usage is merely an attempt to establish a conversational rapport with the “nonspecialist audience.” But deliberately or not, these devices serve to avoid authorial commitment. At its central point, in sum, Michelman’s essay is full of signals that seem to say, “Here’s something that you—you nonspecialists—might find persuasive. Justice Brennan might even have believed it. As for me, well, I might and I might not.”

Powe finds himself in a similar predicament, I think, but his response in The Warren Court and American Politics chooses candor over subtlety. As I noted, Powe declares at the outset that he will not defend—and indeed does not care about—the correctness of the Warren Court’s decisions. Despite his protestation of indifference, however, Powe’s attitudes toward the Court’s members and decisions are apparent. I didn’t keep score case by case, but it seems fair to say that Powe has, on the whole, a favorable attitude toward the major decisions that constitute the legacy of the Warren Court, as well as a genuine if discerning admiration for the Justices mainly responsible for those decisions. But Powe leaves these judgments muted because he seems to recognize that as a constitutional scholar, an approving attitude is just about all he has to offer in support of those decisions. So he limits his scholarly efforts to historical explanation. What did the Court do, and why did it do it?

To be sure, this explanatory purpose does not permit Powe to ignore the cognitive dimension of the Court’s decisions. After all, the Justices said—as Justices will—that they were deciding cases as they did because the Constitution so required; thus it just might turn out that the constitutional reasoning in fact provides the best explanation for the Court’s decisions. Powe accordingly gives due attention to the argumentation; indeed, by contrast to the other authors under review here, he has a knack for succinctly conveying and assessing the Court’s arguments. But his overall stance toward the Court’s adventures in reasoning is one of detached skepticism. By Powe’s reckoning, the arguments offered by the Justices were cogent in some cases—but more often vulnerable and unconvincing, sometimes disingenuous, occasionally absurd and irresponsible.

Because the Court’s reasoning was so often transparently uncompelling, that reasoning doesn’t explain much; it is just too hard to imagine that the Justices could have believed that the Constitution made them do what they did. To acknowledge this, however, is not to judge the decisions themselves deficient. Powe suggests that it is a mistake to evaluate the Warren Court by the coherence or plausibility of its reasoning; that is because the Justices after all “were not constitutional theorists.” Rather, they “were men with power happily exercising it to promote the values of what were, at least during the 1960s, the dominant national elites.” Thus, Powe is skeptical of the familiar account that depicts a Court acting on a reflective commitment to protect “discrete and insular minorities.” Acknowledging that many of the decisions (not all) can be fit into this framework, Powe suspects that this flattering portrayal attributes too much theoretical reflection to the Justices.

But if legal reasoning and constitutional theory are of little help in explaining what the Warren Court did, to what should the historian turn for understanding? Powe’s answer treats the Court as an institution thoroughly—and not dishonorably—immersed in politics. He situates the Court’s decisions and accompanying arguments within an engaging and impressively researched narrative of the various political dimensions of the Warren era: the politics and fortuities of judicial appointments, the extracurricular contacts between Justices and Presidents, the political opposition to the Court and the political and personal oppositions within the Court itself, and the calculations (and frequent miscalculations) that attended the Court’s efforts to drag a resistant American culture toward the conception of the good society held in the sixties by “dominant national elites.”

Powe’s account features selective portraits of the leading Justices. Earl Warren himself, though a “wonderful practical politician” capable of “working magic in small groups,” was also “ham–handed with opinions and found theory foreign.” Given Warren’s ineptitude in the realm of words and ideas, the pivotal opinions were often assigned to Brennan—whose importance derived not from any philosophical depth, as admirers (like Michelman) have sometimes struggled to suppose, but rather from a combination of charm, doggedness, and lawyerly acumen. Brennan “did not need an intellectually coherent theory,” Powe explains; “he wanted realistically coherent results.” In the effort to achieve such results, Brennan was “willing to say virtually anything (or nothing) if a key member of his majority requested it, so long as the opinion reached the right outcome.”

Not surprisingly, the things he was induced to say can prove embarrassing upon close inspection. Thus, Brennan’s views on obscenity were “hopelessly confused”; his position on habeas corpus was supported by “a full–fledged, but mythical, history”; his opinion in a key search–and–seizure case was “a result looking for a reason”; and his exhilarating but incautious statements about the meaning of equality, taken seriously, “would mean toppling hundreds, perhaps thousands, of laws.” For his philosophically flustered but nonetheless tenacious and crafty efforts, Brennan earned the distinction of being “the most important jurist of the second half of the century.” Powe bestows the honor with evident warmth.

Like Brennan, Hugo Black could do wonderful things with—or to—history; the product of his fecundity was perhaps the more striking because Black, unlike Brennan, insisted that the Court was confined to enforcing the historical meaning of the Constitution. Powe comments that “Black mangled history to make it conform to what he believed the Framers should have believed, which not surprisingly was what he believed, and he then claimed that only history should count.” During the McCarthy period, Black’s historical creativity was devoted to a strongly libertarian portrayal of the free speech clause. Later in his career, the picture grew darker; without admitting to any change in his position, Black voted to uphold a variety of restrictions on expression, especially youthful expression—by students and draft resisters. Powe suggests that Black’s more repressive turn grew in part out of “the problems his family was having with his teenage grandson.” Of course, there were also other influences on Black’s judicial behavior. Along with Douglas and Warren, Black regarded anti–Catholicism as “an acceptable and respectable prejudice”; this prejudice surely informed the Court’s religion clause jurisprudence.

Powe presents the less celebrated Justices more simply—perhaps, at times, a bit too simply. Byron White “had no interest in theory. He believed in ‘good outcomes.’ . . . What was good was constitutional; what was bad was not.” Arthur Goldberg was a committed activist, and though “highly intelligent, his ego dwarfed his brain.” Abe Fortas was likewise not lacking in self–esteem; he “not only voted liberal but also did not have the slightest doubt about his own abilities or the efficacy of the Court acting as the engine of reform.” Fortas’ righteous zeal for reforming society was not matched by a comparable concern for personal rectitude, Powe suggests; his opinions could be disingenuous, and in seeking the chief justiceship Fortas repeatedly and blatantly “lied through his teeth” before a Senate committee.

The supreme self–confidence that Powe ascribes to Fortas and Goldberg was characteristic of the Court as a whole. The Warren Court operated, Powe explains, in “an era when those working in Washington, D.C., believed wisdom rested exclusively within its city limits,” and the Justices personified this attitude. Powe remarks on “how ideologically liberal they were and how willing they were to believe their own judgment was infallible.” This remarkably confident Court joyously repudiated traditions and precedents at a record–shattering rate and issued a series of revolutionary rulings that significantly transformed the social order. For example, the Court during the 1960s “remade the entire system of criminal justice.” Powe notes that

in the mid–1960s the American Law Institute was engaged in studies of criminal justice, but the Court, fully aware of this, could not wait. A majority of the Justices were men of action, confident in their own judgment. If wide–scale social engineering was necessary—and they certainly believed it was—then who better to do it?

Some of what I have quoted might seem to come from a conservative, anti–Court tract. Prodigiously endowed both with self–assurance and with the deficiencies of mind and character common to mankind, the Warren Court poobahs seem almost straight out of a Gilbert and Sullivan libretto. Or at least one can imagine a different author using the same material to paint this picture. What makes Powe’s book intriguing is that he draws no such conclusions; he intends neither tragedy nor comedy—nor even normative criticism. As noted, he explains at the outset that his purpose is “neither to cheer nor boo” but only to “explain and understand”; and he seems to be sincere in this.

And indeed, as I have already noted, what the Warren Court did seems largely to Powe’s liking. In his final chapter, Powe quotes a lengthy paean from Yale Law School’s Owen Fiss lauding the Court for carrying out “a program of constitutional reform almost revolutionary in its aspiration and . . . in its achievements”; and Powe seems in the main to concur. Fiss’ panegyric indicates, he comments, that “there were very serious problems in the United States, but thanks to the courageous action of the members of the Court, all the problems”—except gender discrimination, Powe notes, which had to wait for the Burger Court—“were alleviated and some were solved completely.” But Powe offers this judgment in passing; he does not insist on it, and in any case seems to understand that it is not the sort of thing that could be either supported or discredited on the basis of constitutional reasoning.

That is the part of the Warren Court legacy, I think—the Court’s reasoning, its attempts to justify its results on the basis of “the Constitution”—that for Powe “no longer matters.” He does not bother either to cheer or to boo, it seems, because he recognizes that cheering or booing is all that he would be doing; so what would be the point? In sum, a consequence of the Warren Court’s failed attempts at constitutional reasoning, as Powe’s self–conscious silences eloquently reflect, is to subvert confidence in the efficacy of such reasoning—and hence to undermine the possibility of actually being convinced by such reasoning, or of actually believing the conclusions to which it leads.

If Powe forswears cheering and booing, Tinsley Yarbrough revels in them; indeed, they are the sum and substance of his argumentative strategy. The Rehnquist Court and the Constitution advances a thesis that is hardly novel. “President Reagan envisioned a Rehnquist Court willing to repudiate the Warren era’s human rights legacy,” Yarbrough asserts, but because of the sturdy resistance of Clinton appointees (Ruth Bader Ginsburg, Stephen Breyer) and the laudable unpredictability of some Republican appointees (Sandra Day O’Connor, Anthony Kennedy, David Souter), “to date, their efforts have achieved only partial success.” Many potential readers will be persuaded of this thesis before starting Yarbrough’s book; for his part, Yarbrough seems to count on such a priori acceptance, and hence is content to invite readers to join him in applauding or hissing on cue.

Yarbrough’s early chapters are accordingly devoted to portraying the “conservative” members of the current Court (William Rehnquist, Antonin Scalia, Clarence Thomas) as the sort of people who you just know would be opposed to human rights. He does not attempt a sympathetic or even comprehendingly critical description of these Justices’ constitutional philosophies; their hostility to human rights, it seems, comes from the fact that they are, well, . . . just bad people. Thus, beginning at page one, Yarbrough’s presentation of the Chief Justice mainly rehashes accusations raised in the confirmation process: as a law clerk Rehnquist ostensibly opposed Brown v. Board of Education and supported Plessy v. Ferguson, later he allegedly harassed minority voters in Phoenix, he signed deeds containing racially restrictive covenants, and he used painkilling medications. On the bench, Rehnquist could be “pompous.” And he is insensitive; for example, despite an objection lodged by sixteen law clerks he persisted in a court tradition of holding an annual Christmas party that included offensive features such as “a large Christmas tree, a tape recorder playing Christmas music, . . . and the singing of carols.” Grudgingly conceding that Rehnquist “was considered a diplomatic, considerate, generally unflappable colleague,” Yarbrough hastens to explain that “some privately attributed his calm manner to the painkilling medications.”

The villain signs also wave as the other “conservative” Justices are presented. Justice Scalia appears as an “archconservative”—but a wily one; at his confirmation hearings, for instance, Scalia “adroitly avoided presenting the image of an inflexible conservative ideologue.” Justice Thomas, not surprisingly, comes in for the harshest portrayal. Yarbrough dutifully rehearses the Anita Hill controversy and the allegations of Thomas’ taste for sexually explicit videos. Yarbrough even makes a point of emphasizing that Thomas was insensitive to his sister. The law clerks to these Justices were a bad lot as well; Yarbrough quotes a more liberal clerk who found the clerks to conservative Justices—uniformly, it seems—“brash, snide, dismissive.”

Of course, the book also introduces the members of the Court who favor or at least do not consistently oppose human rights—though with different cues. Justice Kennedy is characterized by “reasonable balance” and “jurisprudential flexibility.” Justice Souter is “a forceful defender of his positions and an articulate exponent of the constitutional philosophy [of] his role model, the second Justice Harlan.” Ginsburg is a “centrist,” while Breyer takes a “‘flexible, undogmatic’ approach to constitutional construction” grounded in “tradition, our people, our conscience, our experience.”

After the preview and the introductions of the good guys and bad guys, one is ready to sit back and watch the melodrama unfold. But the expectation is largely disappointed: Yarbrough suddenly switches genres, reciting in considerable detail the majority, concurring, and dissenting arguments in countless major and not–so–major cases, arranged by topics such as “Unenumerated Rights” or “Equal Protection.” Their prose and content make these chapters akin to the sort of descriptive memorandum that a fledgling lawyer is sometimes asked to prepare for an experienced partner who does not yet trust the associate to provide any real analysis or even intelligent synthesis. (“You leave the thinking to me; just tell me what the court said.”) The main difference is that Yarbrough’s law–office memo goes on for almost two hundred pages. If you happen to have a taste for lengthy redactions of Supreme Court opinions, the book will provide hour after hour of satisfaction.

To be sure, the shift in genres is not quite complete. Yarbrough still gives cues about which opinions to applaud or disapprove, mostly through adjectives or adverbs sprinkled into his descriptions. Good opinions are “powerful,” “convincing,” “thoughtful,” “vigorously” or “candidly” argued; bad opinions are “wooden,” “naive,” “wrongheaded,” “highly technical and artificial,” “tortured,” “troublesome,” even “shocking.” An especially energetic opinion by Souter is typically “forceful,” while a comparable opinion by Scalia is “vehement” or “acerbic.”

Very occasionally Yarbrough attempts to supplement his summarizing with what might be classified as analysis, but he avoids taxing the readers’ patience with these efforts. In perhaps the most sustained effort at actual analysis in the book, Yarbrough spends several pages contending for a “separationist” construction of the establishment clause. The argument here is comfortingly familiar; it tracks the kinds of arguments made by, say, Justice Souter. Yet rarely does Yarbrough make any reference to the enormous scholarly literature on these issues. Which is probably just as well, because when he does cite scholarship, one cannot be confident that he has understood the sources he cites. For example, Yarbrough describes Daniel Farber as “a major critic of pragmatic jurisprudence”; the attached footnote cites only one article—an article in which Farber strongly advocates a pragmatic approach to the Constitution.

Whatever its limitations as a work of scholarship, Yarbrough’s book does achieve high marks if it is regarded as a sort of discursive imitation of the Court. Robert Nagel, commenting on the modern Court’s pattern of striking down disfavored laws on the grounds that they are “expressions of prejudice or irrationality or invidiousness,” has observed that “to a remarkable extent our courts have become places where the name–calling and exaggeration that mark the lower depths of our political debate are given a more acceptable, authoritative form.” In this respect, Yarbrough’s heavy reliance on ad hominem arguments mirrors a familiar judicial strategy. And even his bureaucratic chapters have a parallel in the judicial opinions that he so laboriously recounts: as Farber has observed, the modern Court’s opinions often “almost seem designed to wear the reader into submission as much as actually to persuade.”

I began by wondering whether anyone today truly believes in constitutional law. With Michelman and Powe, as we saw, there is reason to doubt. But whatever his scholarly shortcomings, in Yarbrough we have at least and at last encountered a true believer. Haven’t we?

Perhaps, but there are complications; they hinge on whether it makes sense to call the kind of affirming that goes on here believing. Taken together, these books powerfully evince a constitutional culture that is the counterpart of the moral climate described in Alasdair MacIntyre’s seminal study After Virtue. With the collapse of the classical framework for moral discourse, MacIntyre argued, reasoning about moral questions degenerated into an “emotivism” in which “moral judgments, being expressions of attitude or feeling, are neither true nor false; and agreement in moral judgment is not to be secured by any rational method, for there are none.” So a statement like “Honesty is good” is properly understood as a sort of exclamation: “Hurrah for honesty!” Such emotivist judgments may be deeply felt; but to say that they are (or are not) believed is to commit a category mistake.

In a similar way, modern constitutional discourse evinces a sort of jurisprudential emotivism. That discourse quite plainly lacks any agreed upon framework not merely for assessing whether constitutional arguments are true or false but, more fundamentally, for explaining what it would even mean for a constitutional proposition to be true or false. To be sure, people continue to assert—sometimes quite aggressively—that “the Constitution prohibits” (or perhaps requires) affirmative action, or school voucher programs, or abortion rights, or public displays of the Ten Commandments. If such assertions were understood to be representations of something that, however squishy or hard to ascertain, we could at least accept as having a reality independent of lawyerly discourse itself—the conventional meaning of the constitutional text, perhaps, or the intentions of some group of flesh–and–blood “framers”—then it would be easier to understand how propositions of constitutional law could in principle be true or false. But in today’s legal culture, one can hardly assume that familiar constitutional arguments are offered as representations of that kind. Often the advocates make virtually no attempt to link their assertions to such sources; and the attempts that are made are in many instances so flimsy as to provoke the suspicion that they are being offered “under constraint of rhetorical fashion.”

In this situation, these books can be taken as points on a spectrum of unattractive alternatives. It seems that, as Yeats’ line has it, “the best”—the discerning, that is—may come to “lack all conviction”; others will proceed in varying degrees to argue away—or at least emote away—with “passionate intensity.” Powe’s and Yarbrough’s books can be taken as typifying these opposite responses. Michelman, by my reading, reflects a more complicated response—the response of the cognizant but committed advocate who sees the situation for what it is, who also understands that the rhetorical game must nonetheless be played as if he does not see this, but whose self–respect forces him to give the occasional wink to show that he understands full well the tenuous quality of his performance.

So how did we get into this predicament? It would be too simple, I think, just to lay the blame on Justice Brennan, or on the Warren Court, as sometimes happens: surely an adequate explanation would need to look beyond the meager contributions of any mere judge, or even any mere generation of judges. Still, when judges will “mangle history” to support their opinions, when they will “say virtually anything (or nothing)” in order to reach “the right outcome” as measured by “the values of . . . dominant national elites,” when their most astute admirers explain away the judges’ opinions as having been offered “under constraint of rhetorical fashion,” then it can hardly be surprising if the resulting discourse loses its capacity to elicit any response worthy of being called “belief.”

Steven D. Smith is the Robert and Marion Short Professor at Notre Dame Law School and the author of The Constitution and the Pride of Reason.