Harvard Professor Laurence Tribe has been getting a lot of press in advance of his representation of Peabody Energy in its dispute with the Obama Administration over the constitutionality of the Environmental Protection Agency’s carbon dioxide emission regulations. The New York Times reported (April 6) that many of Tribe’s colleagues at Harvard Law School are “bewildered and angry.” Jody Freeman, director of the environmental law program at Harvard Law School, told the Times that Tribe’s claims of unconstitutionality are “baseless.” Freeman and respected law professor and Supreme Court advocate Richard Lazarus wrote on the Harvard Law School website that Mr. Tribe’s arguments are “ridiculous.”
Really? The legal analysis of one of the country’s leading constitutional scholars has no merit whatsoever?
Worse yet, Tribe has even been called a traitor. But a traitor to what? It can’t be that he is a traitor to the constitution. Every constitutional case involves disagreement over the meaning of the constitution. Judges, including Supreme Court justices, often disagree about constitutional requirements. Losing arguments and dissenting opinions are not the pronouncements of traitors. That Professor Tribe disagrees with the Obama administration and apparently most academic lawyers could not make him a traitor to the constitution.
Tribe’s sin is not that he might prove to be wrong on the constitutional issue. Rather it is that he might prove to be right and thereby undercut the Obama administration’s climate change policies. In other words, Tribe is a traitor to the environmentalist policy agenda.
Sadly, this sort of characterization of legal arguments is increasingly commonplace. When Ted Olson joined J to argue in defense of gay marriage he was deemed a traitor by many social conservatives. When Chief Justice John Roberts provided the fifth vote to uphold the constitutionality of Obamacare he was labeled a traitor by opponents of the health care law. But like Tribe, right or wrong, these people were stating honestly held legal conclusions, not personal policy preferences. Or so we must fervently hope.
The politicization of legal argument is particularly evident in the legal academy. Many law professors see themselves as advocates for particular causes, not teachers of the law. Environmental law professors, for example, are overwhelmingly dedicated to preparing their students to represent the environmentalist side of environmental disputes. Those who would suggest that the law sometimes actually favors the position of an energy company or some other ‘enemy’ of the environment are dismissed as hired guns. Either you’re on the side of the environmentalists, or you’re the enemy. And woe unto someone like Professor Tribe who was presumed to be on the side of right and good but appears to have taken up the cause of the enemy.
Honest disagreements over the meaning of the constitution and other laws should be the grist of academic debate, not the basis for labeling one side or the other as traitorous. Professor Tribe should be, and will be in the upcoming legal proceedings, challenged on the legal merits of his constitutional argument. By dismissing his views as those of a traitorous hired gun we invite the courts to do the same.
The tendency to judge legal arguments, whether expressed in law review articles, legal briefs or judicial opinions, on the basis of their policy implications rather than their legal merits is corrosive of the rule of law. Too often we presume that judges will rule on the basis of their political preferences, not on the basis of what the law requires. Editorialists condemn or praise judicial rulings on the basis of results rather than the quality of legal reasoning. Law professors teach their students that any result is possible with creative argument, and the right judge.
Whatever one thinks of the Obama administration’s climate change policy agenda, Professor Tribe should be presumed to be stating his sincere legal opinion, and he should be particularly admired for doing so when it runs counter to what may be his political preferences. That is what every lawyer, law professor and judge should aspire to do. Of course lawyers can and must advocate for the causes of their clients, but at the end of the day their arguments must be evaluated on their legal merits. Otherwise the rule of law will give way to political power and we will all be traitors to the principle of constitutional government.