Rule of Thumb - Never Respond to a Bad Review

I must really enjoy other people's misfortune. I love reading the letters section to the NYT Book Review section just to see the authors' responses to bad reviews. Along with the Times Literary Supplement and NY Review of Books, I imagine this is about the most high-profile forum in which one gets reviewed, so I guess a lot of authors must think it's worth it to rebut a particularly unfavorable review. Still, I never think the authors come off well from these things and that's entertaining. That isn't to say that I think all reviewers are fair, just that authors who respond to their reviews in letters typically seem over-sensitive or insufficiently confident in their own work. The two approaches found most often in letters responding to reviews, so it seems, are to accuse the reviewer of some kind of bias and proceed to write the review that a neutral reviewer would have written, or to suggest that the reviewer missed the point of the book and then try to summarize in a couple of paragraphs what apparently wasn't clear from hundreds of pages. The former risks appearing paranoid or at least conspiratorial and the latter can lead to an inference that the book itself is at fault.

This weekend featured a letter from Larry Kramer, the dean of Stanford Law School and author of a new book on "popular constitutionalism" or the constitution outside the Supreme Court. The book (which I haven't read; it's checked out of my library) was reviewed a few weeks ago by Laurence Tribe (I couldn't get permanent links for these; I hope they're still good.) The first paragraph of Kramer's letter, though, will suffice to show that Kramer attempts the first type of response:

It comes as no surprise that Laurence H. Tribe -- who has spent his academic career litigating cases in the United States Supreme Court -- would not like my book, "The People Themselves" (Oct. 24). It is, after all, an effort to cast a skeptical eye on the claims of people like him to having a special say over constitutional law. I would, however, have expected something more or better from him than a caricature of my argument. Rather than reviewing my book, Tribe has written a common lawyer's brief, employing the sorts of tricks lawyers use to diminish a position they must attack: overreading, underreading or simply misreading complex arguments; taking snippets of quotations out of context; attributing contrived motives to an author or far-fetched consequences to a position; and so forth. No one doubts that Tribe is a good lawyer, and this stuff may be permissible in advocacy. It is, however, and for good reason, generally treated as inappropriate in serious debate.

To start with a nitpick, Kramer refers to Tribe spending his "academic career litigating cases in the United States Supreme Court," which is odd since litigating is not an academic career. Tribe's litigation work is professional practice, while his academic career is teaching and writing. It's an especially strange error for a college administrator to make. He probably means to imply that during the period of Tribe's academic career he's also (instead?) been a participant in the Court-centric imperial judiciary, but it's awkwardly expressed.

The "neutral" review follows. It's useful to look back at Tribe's review, which is casual to the point of dismissiveness. Maybe this high-handed attitude is why he draws such ire from his ideological rivals. From Tribe's review, it looks like Kramer rehearses many of the standard examples of coordinate construction of the constitution in the political branches (Jefferson's treatment of the Sedition Act, Jackson's veto of the Second National Bank, etc.) and that this, plus the civil war experience, constitutes his history. I find it hard to believe that Kramer really claims that "no one except the parties before the court should feel any obligation to obey its rulings," as Tribe says he does. Kramer doesn't explicitly deny this in his response, however.

According to Tribe's review, Kramer also favors the aggressive use of political tools to punish justices for making unpopular opinions, which isn't the same thing as calling for greater reliance on extrajudicial deliberation for constitutional meaning. Rather, it sounds like greater dominance of the courts by the political branches, since there's no guarantee that political control of the judiciary will only function when the people are acting enlightened. Again, Kramer claims he's being mischaracterized, but doesn't explicitly deny the attributed ideas. In fact, I can't figure out what Kramer's book actually says from his letter, which contains generalities about "leading and following, checking and balancing, representing and responding" without saying what specifically he means. Tribe, alternatively, points out several powers Congress and the President have to participate in the elaboration of constitutional meaning.

Tribe points out that much of what Kramer appears to be saying isn't new, and certainly Kramer is familiar with Bruce Ackerman’s argument that dualist constitutionalism requires a judiciary with the authority to bind the power of "ordinary" majoritarian politics while allowing for extraordinary political change in those constitutional limitations. I'd also cite Mark Tushnet's Taking the Constitution Away from the Courts, which endeavors (unsuccessfully, I think, but I am sympathetic to his argument) to prove that the "political branches" are at least as qualified to elaborate on fundamental law as the judiciary, and Keith Whittington's Constitutional Construction, which describes in detail several cases where deliberation on the meaning of the constitution appears (maybe) to have profoundly influenced the way that political forces function. I don't see any reflection in Kramer or Tribe's entries of these arguments.

Tribe rightly notes that the impulse to deny the Supreme Court the power to bind other actors through judicial review frequently rises from disagreement with how the Court uses that authority. Still, contemporary skepticism about the legitimacy of judicial review can be traced back to the unease that liberal supporters of the Warren Court’s activism felt with the undemocratic character of judicial legislation. At least since Alexander Bickel, progressive theorists have sought to resolve the countermajoritarian difficulty posed by judicial intervention. Tribe’s claim that Kramer favors disregarding judicial interpretations of the constitution, which Kramer labels "misleading" but also calls "unnecessary or unthreatening" was hardly the latter to those who suffered from the active resistance to integration efforts. Naturally, he has to diminish the early Warren Court civil rights record (echoing Gerald Rosenberg's contentious Hollow Hope argument,) since it was resistance to segregation that led to the Warren Court's pronouncement of judicial supremacy in Cooper v Aaron.

Along with the recent "judicial triumphalism" Tribe refers to, Kramer might profitably argue that the widespread assumption of judicial monopoly over constitutional meaning has led the quality of constitutional discourse in the political sphere to degenerate. Where legislators and executives may (and, let me emphasize, may) have once felt positively obliged to conform their behavior with the limitations of the constitution as they independently understood them, politicians now regularly engage in empty position-taking through legislative and executive actions that courts will faithful prevent from having any ill effects. The recent Bipartisan Campaign Reform Act, an absurdly draconian overhaul of political finance law that does more to protect incumbents than prevent the appearance of corruption in politics, may very well have passed and been signed into law because members of Congress and President Bush believed that the Supreme Court would strip its worst excesses, which they didn’t do. Combined with the decreasingly competitive districting techniques that the courts have proven unable to counter, politicians’ disregard for any meaningful limits on the bounds of political competition may do much more harm to the legitimacy of public authority than even manufactured intelligence. Ironically, Kramer might not be able to use these examples, since greater judicial acquiescence to popular constitutionalism is arguably the problem, rather than the solution.

Another problem with these arguments is that Kramer can’t exactly blame the court and the brahmin-class of constitutional lawyers for the abdication of responsibility for principled constitutional deliberation by politicians, since politicians have quite plausibly welcomed it. As long as the left and the right can gain political favor by blaming the courts for their policy or political failures, they have an incentive to grant the courts the power that can make that claim credible. So, even if Kramer does argue that more assertive opposition to judicial monopoly on constitutionalism could make the Court more quiescent, and simultaneously cause politicians and the public to take their constitutional responsibilities more seriously, he’d have to argue convincingly that somebody really wants to do that.

I’ll have to read Kramer’s book, but his letter is disturbingly sanguine about the "risks" associated with popular governments beating the judiciary into obedience through manipulation of funding, jurisdiction, size and impeachment. Instances when the Court has appeared to bow to intense public pressure, regarding military arrests and trials, the criminalizing of communist speech, Japanese internment, legislative investigation, etc., don’t represent the informed polity at its finest. One could argue that state and federal authorities have ceded the constitution to the Court by demonstration of their untrustworthiness.

At any rate, it just doesn't pay to respond to a bad review. Tribe's attitude probably explains why Kramer wrote his letter, although it doesn't do him any favors.