THE BATTLE OVER RIGHTS IS THE PROBLEM BUT JUDGES ARE NOT THE SOLUTION.

AuthorSegall, Eric J.

HOW RIGHTS WENT WRONG: WHY OUR OBSESSION WITH RIGHTS IS TEARING AMERICA APART. By Jamal Greene. (*) Boston: Houghton Mifflin Harcourt. 2021. Pp. xxxvi + 300. $23.00 (hardcover).

"Constitutional law can help-but only when it stops being about judges peering at law books and dictionaries and starts being about the rest of us." (p. 251)

Constitutional law is in disarray. Courts are tearing away at the fabric of abortion doctrine, affirmative action precedents have driven the use of race in university admissions underground, and the conflicts between people of faith and the rights of LGBTQ folks are colliding nationwide, among many other examples. Court reform to address these problems is in the air, if not on the ground.

In his new book, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart, Professor Jamal Greene documents these battles with precision, and demonstrates that our legal system's failure to generate compromise and find common ground between people who hold conflicting rights is, indeed, tearing us apart. Most of this beautifully written book accurately captures how our Supreme Court's largely all-or-nothing approach to rights is making America a less hospitable and more polarized country. Greene's descriptive accounts are poignant.

The problem with the book is Greene's proposed solution.

He prefers the European style of judicial review that goes by the label "proportionality" (pp. xxii-xxiii). He wants judges to play closer attention to the facts of each case, emphasize the unique aspects of specific controversies, and spend more time trying to find workable solutions that may leave both sides a little satisfied and a little angry, rather than the winner-take-all version our Supreme Court often prefers. The problem is that this suggestion provides unelected, life-tenured judges too much power and discretion to make public policy, not too little. Neither the liberals nor conservatives on the Court, nor our lower court judges, should be trusted to make this shift the way Greene advocates. The better way forward, if one agrees with Greene's depressing account, which I do, is to return most constitutional law issues to the political process directly and unapologetically. (2)

Part I outlines Greene's summary of the contentious rights disputes plaguing our country. Greene is at his best when lamenting the status quo. This section also discusses his proposals, both generally and as to specific debates, and shows they are neither workable nor desirable. Part II suggests a different way forward.

  1. ALL OR NOTHING RIGHTS BATTLES

    Greene sets out his thesis clearly and cogently: "The problem of the twenty-first century, in short, is the problem of the rights line" (p. xvii). In modern vernacular, "rights have gone viral.... Rights are everywhere, but we disagree, intensely, and in good faith, about what rights protect" (pp. xiv-xv). When we view rights as absolute, or even almost absolute, the result is a winner-take-all battle. As Greene observes, "[i]f only one side can win, it might as well be mine" (p. xvii).

    In response to these battles, Greene suggests there are three options: minimization, discrimination, and mediation. He dismisses the first two options as either not protective enough of important values we hold dear or too dismissive of the competing interests involved. The third choice, mediation, is the one Greene advocates. Our judges, he asserts, recognize relatively few rights compared to other free societies, but those rights that judges do identify they protect too strongly. Instead, Greene suggests that we should recognize the validity of more rights, but less aggressively (p. xx).

    Rather than requiring judges to define rights by arguing about the express or implied meaning of the Constitution, or even worse, historical debates, Greene suggests a much more pragmatic, consequentialist approach. Courts should devote much less time to "probes of original intentions, pedantic textual analysis, and mechanical application of precedent... and spend more time examining the facts of the case before them" (p. xx). He suggests judges focus on the following factors to help mediate between conflicting claims of rights and adopt proportional judicial review:

    What kind of government institution is acting? Is there good cause, grounded in its history, procedures, or professional competence, to trust its judgments? What are its stated reasons? Are those reasons supported by evidence? Are there alternatives that can achieve the same ends at less cost to individual freedom or equality? Knowing that courts will ask these kinds of questions makes other government actors ask them, too, as they craft their own policies and structure their own behavior (p. xx). Much of the rest of the book is devoted to detailed discussions of rights conflicts, how our courts have gotten many of them wrong, how other countries, especially Germany and Britain, have fared better, and specific suggestions, based on the criteria above, for some of our most intense battles over rights. Among the many disputes Greene discusses are affirmative action, abortion, gun control, disability rights, and the conflict between religious liberty and rights of non-discrimination.

    Greene's discussion of the current doctrinal chaos surrounding affirmative action is compelling. He begins by observing that until...

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