Daniel R. Ortiz (University of Virginia School of Law) has posted Nice Legal Studies on SSRN. Here is the abstract:
Unlike contemporary politics, much of our recent legal theory urges us to “make nice,” that is, to minimize social conflict and economize on disagreement whenever possible. By focusing our attention and energy on what we can agree on, it claims to privatize animosity and promote productive social action. Most important, it purports to have no substantive politics.
This essay criticizes both the theorists and jurists who advocate this view for concealing the deep and controversial politics their calls entail. By looking closely at Tom Nagel’s Concealment and Disclosure, which most fully lays out the foundations of this position, and Cass Sunstein’s One Case At A Time: Judicial Minimalism On The Supreme Court, which normatively defends it as appropriate judicial practice, this article shows how theorists employ it in an attempt to disarm conservative politics. Niceness, in their hands, forestalls conflict that could unwind prior judicial accomplishments they approve of.
The essay then discusses Chief Justice John Roberts’s seemingly paradoxical championing of this same position. Why does he self-consciously adopt a view liberal theorists developed in order to preserve the legacy of the Warren and Burger Courts against conservative challenge? He employs it differently to pull the sting from conservative judicial practice. The article looks at two of his most important opinions on the Court: his controlling opinion in FEC v. Wisconsin Right to Life II and his partial majority and plurality opinion in Parents Involved In Community Schools v. Seattle School District No. 1. The first shows how he employs niceness to overturn the leading constitutional case supporting campaign finance reform: McConnell v. FEC. His strategy is to disarm all criticism by presenting himself as doing nothing at all. The second illustrates a somewhat different use of this strategy. In it, he claims Brown v. Board of Education as authority for a very controversial reading of the equal protection clause-one that would outlaw most affirmative action in education. Here he again tries to appear to be doing nothing at all-this time not by finely parsing leading constitutional precedent but by broadly reweaving the constitutional past in order to make it appear necessarily continuous with his position. To the extent he is successful, his opponents, not he, break with perhaps the most sacrosanct constitutional case of the last several generations.