Are Liberals Legal Realists Or Formalists?

Jacob Levy has been involved in some very interesting political theory exchanges in a number of recent posts over on Volokh. I’m not citing them all, but his last one, here, has some links.

I will not dare to tread very far into the theoretical thicket, but the post linked above closes with a provocative point:

Contemporary left-liberalism certainly doesn’t owe very much to the legal realism that was one of the major intellectual movements on the center-left in the first half of the twentieth century, and that apparently captured the Supreme Court for a while. Richard Posner and the crits are the heirs-apparent of legal realism, while the liberal legalist attempt to rationalize the Warren Court (e.g. Dworkin) has remarried a kind of legal formalism with a moral-realism-that-dare-not-speak-its-name. Dworkin owes as little to Felix Cohen as Rawls owes to Croly. I think if you asked the roomsful of College Democrats [Jonah] Goldberg mentions how many believed that we really do have individual rights like freedom of speech and sexual/ reproductive freedom that the courts are morally and legally bound to uphold, you’d get a lot of hands these days. In the 30s, that would have been thought hopelessly bourgeois, superstitious, or both. Similarly, a contemporary American left-liberal might find him- or herself inspired by FDR’s speeches, but also remembers the internment of Japanese-Americans and even the court-packing plan as bad and illiberal. The Great Society might be a phrase to warm some hearts, but the reality of LBJ isn’t a very fond memory.

Levy may be right about a widespread liberal belief in real sexual freedom rights, but I suspect most of those college Dems would be willing to limit free speech rights with laws against hate speech. Virtually, or even literally, none of them would still believe that the state should never distribute benefits or burdens on the basis of race. (Dworkin especially has been at great pains for years to justify this diversion from traditional liberal civil rights theory.) And I would be very surprised if any of them had any principled (as opposed to partisan) objections to court packing. Indeed, I suspect most would agree with Sen. Schumer that judges are simply ideologues in robes. In short, I suspect Levy may be underestimating the sway of legal realism in liberal thought today.

UPDATE

In a thoughtful response (at the bottom of his post linked above), Levy thinks that I am confusing an abandonment of a firm belief in rights with a simple disagreement over the content of those rights.

He certainly has a point, actually a very good point (certainly Dworkin doesn’t think of himself as having anything to do with realism), but even granting his point, which I do, the fact remains that many of the rights liberals still believe in have eroded over the years — or if you prefer a less loaded description, those rights have lost weight by discarding many elements they used to include: free speech, but no longer “hate speech” or speech that creates a “hostile work environment”; civil rights, but no longer protected by a “colorblind” Constitution that bars “taking race into account” in hiring, promotion, school assignment, college admissions, voting, etc. Indeed, I suspect most if not all of that room full of “college Democrats” would believe that the Constitution commands taking race into account. In his response Levy does not mention a belief in an independent judiciary that should be free from partisanship and “illiberal” court-packing, but I think it would be hard for liberals today to make a principled argument (as opposed to a campaign speech) against “taking ideology into account” in selecting judges, nor do many of them seem to see a line (bright or otherwise) separating law from politics.

In all of these areas, it seems to me, the arguments that liberals have made in shedding rights (or, if you prefer, portions of rights) they used to accept are difficult — and in the case of an independent judiciary committed to the rule of law, impossible — to distinguish from arguments in similar arenas by legal realists.