The New Yorker's Isaac Chotiner interviews noted Harvard law professor Laurence Tribe for the latest issue. The brief-yet-broad interview covers a range of topics, and includes some of the "gotcha" questions for which Chotiner is known.
In the interview, Professor Tribe describes how he embraced the Supreme Court's ideological direction during the Warren and Burger Courts, but became disillusioned as the Court became less progressive. This disillusionment ultimately led to Professor Tribe's decision not to finish the much-awaited third edition of his constitutional law treatise.
I think there's always been a powerful ideological stream, but the ascendant ideology in the nineteen-sixties and seventies was one that I could easily identify with. It was the ideology that said the relatively powerless deserve protection, by an independent branch of government, from those who would trample on them. . . .
. . . Justice Brennan had a project whose architecture was really driven by his sense of the purposes of the law, and those purposes were moral and political. No question about it. I'm not saying that somehow the liberal take on constitutional law is free of ideology. There was, however, an intellectually coherent effort to connect the ideology with the whole theory of what the Constitution was for and what the Court was for. Mainly, the Court is an anti-majoritarian branch, and it's there to protect minorities and make sure that people are fairly represented. I could identify with that ideology. It made sense to me, and I could see elements of it in various areas of doctrine. But as that fell apart, and as the Court reverted to a very different ideology, one in which the Court was essentially there to protect propertied interests and to protect corporations and to keep the masses at bay—that's an ideology, too, but it was not being elaborated in doctrine in a way that I found even coherent, let alone attractive.
Maybe I'm wrong about this, but I see more internal contradiction and inconsistency in the strands of doctrine of the people who came back into power with the Reagan Administration and the Federalist Society. I'm not the person to make sense of what they're doing, because it doesn't hang together for me. Even if I could play the role that I think I did play with a version that I find more morally attractive, it's a project that I would regard as somewhat evil and wouldn't want to take part in.
