BY OWEN FISS
HARVARD UNIVERSITY PRESS, 2017
BOOK REVIEW CONTENTS INTRODUCTION 1640 1. THE PILLARS AND THE PORTRAITIST 1641 A. Idols: Civil Rights Lawyers and Judges 1643 B. Sympathetic Colleagues in Hyde Park and Nirvana 1647 C. Friendly Critics 1651 D. Legal Cosmopolitans 1653 E. Students 1654 II. REFLECTIONS 1656 A. The Aging of Brown and the Warren Court 1656 B. Yale Law School 1668 1. Legal Realism at Yale 1668 2. Legal Education at Yale and Beyond 1678 C. The Future of Legal Liberalism 1687 D. The Prices Paid 1692 CONCLUSION 1695 INTRODUCTION
Owen Fiss has led an enviable life. The Sterling Professor Emeritus at Yale Law School is a revered teacher; author of dozens of books and articles on procedure, constitutional law, and legal theory; (1) and one of the most cited legal scholars of all time. (2) Devotion to Brown v. Board of Education, (3) the liberalism it fostered, (4) and the Warren Court pervade Fiss's life as a law clerk, lawyer, and professor. They also pervade his writings, even his magisterial Holmes Devise volume on the Fuller Court. (5) In Pillars of Justice: Lawyers and the Liberal Tradition, a book written "to inspire and instruct" the young, (6) Fiss introduces us to his legal liberalism, Yale, and heroes--Thurgood Marshall, William Brennan, John Doar, Burke Marshall, Harry Kalven, Eugene Rostow, Arthur Leff, Catharine MacKinnon, Joseph Goldstein, Robert Cover, Morton Horwitz, Carlos Nino, and Aharon Barak. Each of these individuals shares, Fiss maintains, a devotion to Brown as a transformative event that made law an anvil for hammering out Americans' most sacred ideals. (7) All also lived lives that provide "guidance for anyone who wonders how he or she might achieve something in this world that is worthwhile and good." (8)
While that sounds portentous, the book is anything but. Fiss's generosity of spirit and capacity for friendship shine through on every page. His marvelous portraits are evocative, moving, and sometimes unexpectedly amusing, as when the young Fiss, eager to discuss a case, raced into Thurgood Marshall's chambers one morning and belatedly "noticed [his] pajamas coming through the bottom of [his] slacks." (9) Pillars enlists history and biography to explain our duty to further reason through law. And, since, as Fiss recognizes, "[a] 11 biography is a form of autobiography," (10) his essays tell as much about the author as his subjects.
This Review proceeds in two Parts. Part I explores Fiss's views on his luminaries, Brown, legal liberalism, and Yale. I group the discussion into five categories --civil rights idols, sympathetic colleagues, friendly critics, legal cosmopolitans, and students (who make frequent guest appearances and star in the chapter on MacKinnon and in Fiss's coda, "Toiling in Eden"). (11) Part II discusses the criticisms of Brown, the Warren Court, and legal liberalism that are missing in Fiss's paean. I question Fiss's version of the history of Yale and his ideal of legal education, and maintain that he overlooks the role of legal realism in creating the school, Brown, and legal liberalism. I then query whether legal liberalism remains as viable for the present as Fiss contends. Finally, I query whether his subjects should and can still serve as our models.
THE PILLARS AND THE PORTRAITIST
By situating his encounters in the context of his own autobiography, Fiss enables us to observe one Pilgrim's Progress. We see the embodiment of the meritocratic ideal rebelling against process theorists in the Slough of Despond--i.e., Harvard--then moving forward armed with his heroes' rectitude, faith in reason, and legal liberalism. We witness Fiss's deep attachment to the Warren Court and Brown, watch him championing them against all comers on the right and left, and charging students to restore them. For Fiss, the Warren Court and Yale are the Celestial City. (12)
Born in 1938, Fiss grew up in modest circumstances in a Bronx Sephardic Jewish household. (13) Good grades took him to Stuyvesant High School in Manhattan, then to Dartmouth. (14) At Oxford, he studied philosophy with Gilbert Ryle, H.L.A. Hart, Isaiah Berlin, and other greats, until he wearied of witnessing "the insular quality of the inquiries that then dominated the profession," while reading about the civil rights struggles at home. (15)
His years in law school from 1961 to 1964, however, brought him no closer to the revolution. Fiss enrolled at Harvard "at a time when civil rights and the Brown ruling made only fleeting appearances in the curriculum." (16) His teachers, almost all of them legal process theorists, channeled their patron saint, Felix Frankfurter. (17) Obsessed with the supposedly antidemocratic nature of judicial review--Alexander Bickel's famed "counter-majoritarian difficulty" (18)--process theorists demanded better reasoning, more principled distinctions, and greater fidelity to the judicial role. (19) They mocked Chief Justice Warren for his questions about "whether a particular legal position was 'just.' Sophisticated legal scholars did not speak that way." (20)
Fortuitously, however, Paul Freund, "in his kind, stately way," (21) encouraged Fiss to write about the impact of Brown v. Board of Education on public school desegregation outside the South. (22) Fiss now escaped the intellectual prison of Harvard--as he portrays it--and found his calling. He would develop a legal process theory that enshrined reason and extolled the Warren Court and the Justices who handed down Brown as "public officials situated within a profession, bounded at every turn by the norms and conventions that define and constitute that profession." (23) He would also become an exponent of legal liberalism, trust in the potential of federal courts, particularly the Warren Court, to produce positive, permanent change for the disempowered.
Idols: Civil Rights Lawyers and Judges
Fiss's two clerkships deepened his commitment to this project. Fittingly, his first trip outside New York came as a high school senior in 1955, when he toured the Supreme Court and saw Thurgood Marshall unsuccessfully urging the immediate desegregation of public elementary and secondary schools in the second, remedial phase of Brown v. Board of Education. (24) "A tall Black lawyer--set in a sea of white faces--was addressing the Justices, and all eyes were fixed on him," he writes of that "electrifying" moment. (25) At their clerkship interview eight years later, Marshall, then a Second Circuit judge, teased Fiss about his Harvard education, which the judge referred to "with a respectful disdain," (26) and told stories, as the great raconteur continued to do through the clerkship year. Consequently, Fiss, Marshall's only clerk, uncomplainingly worked "late into the night to catch up on [his] assignments." (27)
During that "thrilling" year, (28) Fiss watched the unassuming Marshall resist Second Circuit powerhouses like Henry Friendly, who disapproved of the Warren Court's criminal procedure revolution. (29) Though it had taken the Senate almost a year to confirm Marshall's appointment, and he lacked the prestigious connections to Wall Street law firms that many of his new colleagues possessed, he bravely defended the Warren Court. (30) Fiss viewed Marshall's 1967 appointment to the Supreme Court as a "transcendent moment" in American history and for liberals. (31)
Alas, Richard Nixon's attack on the Warren Court in 1968 paid off, and the new President, with his four Court appointments, cut short the jubilation. As a result, Justice Marshall spent most of his tenure besieged by the conservative assault on Brown (32) and censuring his colleagues' rightward turn. (33) Think, for example, of Marshall's dissent in Milliken v. Bradley, condemning the majority's refusal to rule that intentional school segregation in one district justified multidistrict busing as an "emasculation of our constitutional guarantee of equal protection of the laws." (34) Yet, displays of temper remained rare. The Justice was a "passionate" but "disciplined" individual who loved the law for its "redemptive possibilities" and never lost sight of it as "a source of radical hope." (35) With Marshall's retirement in 1991, the country lost the twentieth century's "most accomplished lawyer." (36)
If Fiss counts Marshall as the greatest lawyer, he leaves no doubt that William Brennan, for whom he clerked from 1965 to 1966, was the Court's best Justice. While Fiss acknowledges the important roles of the executive branch, Congress, and the civil rights and welfare rights movements, he claims that it was the Warren Court that transformed the nation:
In the 1950s, America was not a pretty sight. Jim Crow reigned supreme. Blacks were systematically disenfranchised and excluded from juries. State-fostered religious practices, such as school prayer, were pervasive. Legislatures were grossly gerrymandered and malapportioned. McCarthyism stifled dissent, and the jurisdiction of the censor over matters deemed obscene or libelous had no constitutional limits. The heavy hand of the criminal law threatened those who publicly provided information and advice about contraceptives, imperiling the most intimate of human relationships and exposing women to the burdens of unwanted pregnancies. The states had a virtually free hand in the administration of criminal justice. Trials often proceeded without counsel or jury. Convictions were allowed to stand even when they turned on illegally seized evidence or on statements extracted from the accused by coercion. There were no rules limiting the imposition of the death penalty. These features of the criminal justice system victimized the poor and disadvantaged. So too did the welfare system which was administered in an arbitrary and oppressive manner. The capacity of the poor to participate in civic activities was also limited by the imposition of poll taxes, court filing fees, and the like. It was precisely these evils that...