The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
While Professor Tribe is no fan of the current Court, he agrees with those who have condemned the leak of Justice Alito's draft Dobbs opinion. Notes Tribe, "no governmental institution can function very effectively if it can't have at least some internal confidentiality when half-baked ideas are circulated."
At one point in the interview, Professor Tribe suggests he was not surprised by Chief Justice John Roberts' decision in NFIB v. Sebelius because, as a law student at Harvard, a young Roberts appreciated that the taxing power was much broader than the power to regulate interstate commerce.
At one point, Chotiner challenges Tribe about his controversial work for coal companies challenging the Environmental Protection Agency's authority to adopt the Clean Power Plan. At the time, Professor Tribe argued that the Obama Administration's plans were unlawful under the Clean Air Act and unconstitutional. Now that the EPA's authority to adopt the Clean Power Plan is before the Court, he sings a slightly different tune,.
Well, right now I'm very much opposed to what the Supreme Court looks like it's going to do in the case of West Virginia against the E.P.A., where it's going to strip the E.P.A. of the power to control greenhouse gases under Section 112. Maybe I was wrong, but I thought that the Obama Administration's E.P.A. was using the wrong provision of the Clean Air Act. I didn't think, and I still don't think, that Section 112 of the Clean Air Act provided the authority that the E.P.A. was using. But I'm very much in favor of regulating the fossil-fuel industry to deal with the problem of global warming. And I'm working with various people that encourage the use of a different section, Section 115 of the Clean Air Act. And I wouldn't, for all the money in the world, oppose the use of Section 115. So that was a case where it was kind of unfortunate. I taught the first environmental-law class in the history of the country.
Professor Tribe says he opposes what the Supreme Court might do in West Virginia v. EPA, but what precisely does he object to? In the West Virginia case the Court might conclude that the EPA lacks the authority to adopt something like the Clean Power Plan. Yet that is also what Tribe argued, albeit on slightly different (and more expansive) grounds. In West Virginia it looks as if the Court might hold that the Clean Air Act does not authorize something like the Clean Power Plan. Tribe likewise argued that the EPA lacked such authority, but also argued that the Clean Power Plan was unconstitutonal! He also supported an effort to enjoin the EPA's rulemaking process. Now, however, Tribe has second thoughts:
it was unfortunate that I found myself in a situation where I was convinced that the law and the Constitution pointed in one way, and the problem of global warming pointed the other way. The Administration was stretching a provision of the Clean Air Act that simply didn't apply. It's a kind of technical thing, but in hindsight, because of all the criticism I took . . . I mean, I don't mind the criticism I took for testifying against Robert Bork in 1987. I would do that again in a heartbeat. This one I wish I really hadn't done. Not because I think I was wrong, but because it created a distraction from something I deeply care about, and that is finding a good solution to the problem of global warming.
Tribe also makes some errors in the above passage. At issue is not the scope of EPA's authority under Section 112 of the Clean Air Act, but Section 111. It is also not true that Tribe taught the first environmental law class in the country. He did not even teach the first environmental law class at Harvard. (Though I'm proud to note that CWRU appears to have been the first school to have a professor, Arnold Reitze, teaching environmental law full time.)
It would not be a Chotiner interview without some "gotcha" questions, and this one does not disappoint. At the close, Chotiner asks Tribe about his twitter habits, including his intemperate language and retweeting inaccurate or conspiratorial information.
More recently, you tweeted that "the GOP's Trump wing appears to be throwing its weight behind Putin. If Putin opts to wage war on our ally, Ukraine, such 'aid and comfort' to an 'enemy' would appear to become 'treason' as defined by Article III of the U.S. Constitution."
I don't think I ever said they'd be committing treason. I've always been careful under Article III—
You said that it "would appear to become 'treason' as defined by Article III."
Well, it was a stupid thing to say. And I withdrew it almost immediately. I try to be careful about the word "treason." I'm not as cautious, because I don't want to spend a lot of time on Twitter. I just do that while I'm doing other things. I'm probably less cautious than I wish I were, and I sometimes use words that are not as carefully considered, and sometimes when it's pointed out—certainly if it's pointed out—I withdraw it.
The whole interview is worth a read.