The great civil-rights lawyer Bryan Stevenson tells a story of his grandmother warning him, upon finding young Bryan hanging out with some of the neighborhood’s less savory characters, that he will be judged “by the company you keep.” In Pillars of Justice, Owen Fiss, a legendary Yale law professor, reflects on the company he has kept, offering discerning profiles of the lawyers and scholars he’s worked with and admired over the course of his 50-year career. Some were mentors, others colleagues, one a student—all close friends. From these spare and elegant profiles emerges a collective portrait of greatness in the law and, more particularly, of Fiss’s conception of what makes law great. In an era when lawyers are often condemned as hired guns, and law is often dismissed as little more than politics in disguise, Fiss’s collection provides a welcome counterpoint by reminding us that law, pursued in the interests of justice rather than material interest or self-aggrandizement, can be a noble profession.
Some of those profiled here are household names: US Supreme Court Justices Thurgood Marshall and William Brennan, Israeli Supreme Court Justice Aharon Barak. Others are widely known in the legal academy, if not outside: Harry Kalven, a First Amendment scholar at the University of Chicago; Morton Horwitz, a legal historian at Harvard Law School; Joseph Goldstein, a Yale law professor who pioneered the field of law and psychoanalysis; and Catharine MacKinnon, a professor at the University of Michigan Law School who introduced the concept of sexual harassment to the law (and, much less successfully, sought to give women the right to sue pornographers for their objectified depictions of women’s bodies). Others are civil-rights and human-rights lawyers, including Burke Marshall and John Doar, both of whom worked in the Justice Department’s Civil Rights Division, and Carlos Nino, an Argentine lawyer who helped bring military leaders to justice for “disappearing” thousands of people in that country’s “dirty war” in the 1970s.
The essays reflect Fiss’s deep appreciation for what these people offered him, intellectually and emotionally. Some focus on the lawyers’ work or the scholars’ substantive areas of inquiry. Some are both personal and political; the chapter on MacKinnon, for example, canvasses her enormous influence on the law of sex discrimination, but also her influence on Fiss himself. Inspired by MacKinnon, Fiss began teaching a course on law and feminism, the only one on the subject that was offered by Yale in the 1980s.
Taken together, these essays offer readers a view of constitutional and civil-rights law as a forum for articulating the nation’s most fundamental values; for enforcing those ideals when the political branches are not up to doing so; and for pursuing justice through the application of reasoned judgment. Today, too many lawyers—professors and practitioners alike—reject this approach as naive and overly idealistic; they view law more cynically as just a tool of political action, no different from any other. In this book, Fiss offers concrete evidence, drawn from the lives of others, that this cynicism is not warranted.
Fiss’s career, like his book, has been defined by a commitment to civil rights and to the role of the courts in advancing social justice. He was born and raised in the Bronx, and his legal and academic work has always focused on how constitutional law can bring equality to the disadvantaged. Fiss’s interest in law and the part it can play in furthering liberal causes developed early: On a trip to Washington as a high-school student in the 1950s, he recalls seeing Thurgood Marshall arguing Brown v. Board of Education, the landmark school-desegregation case. After attending Dartmouth College, Oxford University, and Harvard Law School, Fiss clerked for both Marshall and Brennan, probably the two greatest civil-rights justices on the Supreme Court. As a young lawyer, he turned to the Justice Department, where he worked on civil-rights enforcement, before becoming a law professor, first at the University of Chicago in 1968 and then at Yale in 1974. In his many years at Yale, he has defended a robust role for the courts in giving public meaning to constitutional rights and in imposing structural reform on bureaucracies that infringe on the most basic of these: liberty, privacy, autonomy, and—above all—equality.
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Fiss’s conception of constitutional law was forged by the Warren Court, which became known for dismantling Jim Crow, applying constitutional limits to state government that had previously been applied only to the federal government, and expanding safeguards for the rights of criminal defendants. Fiss sees adjudication not merely as an arena for resolving private disputes, but also as a forum for explicating the nation’s highest ideals. He defends what others deride as “judicial activism” as an essential element of a constitutional legal system. Where others taught the first-year law-school course on “Civil Procedure” as a primer on how to file and litigate lawsuits, Fiss reimagined it as a way to explore the most elemental questions of social justice, asking how different procedural rules would advance or obstruct the ability of courts to remedy society’s most systemic ills. For him, there wasn’t much question that judges had a responsibility to reform institutions that failed to meet constitutional demands; the only question was how we ought to formulate these rules in order to give judges the means to pursue justice and protect the vulnerable.
Some of the most interesting chapters in Pillars of Justice reprise arguments that, one suspects, Fiss has been pursuing with colleagues in law-school hallways for many decades. One frequent interlocutor is Horwitz, the Harvard legal historian. The two were classmates at Stuyvesant High School in New York City; in fact, they were on the same trip to Washington and together watched Marshall arguing Brown. Horwitz and Fiss, one senses, have been debating ever since what that case means for our understanding of law and social change more generally. Horwitz, one of the founders of the Critical Legal Studies movement, takes a fundamentally historicist view of law and sees legal decisions, including Brown, as a product of multiple contingent social and political forces. For Fiss, by contrast, Brown was not an accident of history, but rather the product of justices engaged in reasoned elaboration of our nation’s most fundamental values. Horwitz insists that law is one of the many channels through which politics operates, and not one from which we should necessarily expect justice. Fiss takes the opposite view: that law is a forum of principle, which at its best gives public and concrete meaning to our nation’s most enduring ideals.
Another chapter details a related debate that Fiss has had with Robert Cover, his colleague at Yale, who also took a darker view of judges and law. Whereas Fiss saw the judiciary as “a tribune of public reason,” Cover “increasingly emphasized its violent nature,” coining the term “jurispathic” to suggest that judging is not so much an expression of reasoned discourse as the naked assertion of authority to end—or kill—debate. Whereas Fiss viewed judges as leaders in our great moral dialogues, Cover saw them as obstructionists who impeded those debates.
In a sense, Horwitz and Cover are both right: Legal decisions are very much a product of history, and the power of judges stems from their authority to enforce their decrees, not from the brilliance of their capacity to reason about political principles. But as Fiss contends, we vest judges with the power to decide deeply contested issues only on the condition that they do so through a commitment to the reasoned articulation of fundamental constitutional values. They must seek to implement those values, not personal preferences. If the courts get that wrong, Fiss maintains, they can lose their legitimacy. And while, as a formal matter, judges can compel obedience to their orders, their real authority ultimately depends not just on coercion, but also on principle and persuasion. The best judges and lawyers understand that the appeal to public reason is essential to continuing the enterprise of constitutional law. In his book, Fiss celebrates those who shared and lived that vision. But at the same time, he gives equal space to those with whom he has disagreed, reflecting his genuine appreciation of scholars who offer careful and thoughtful critiques of that vision.
The tension between the ideals outlined in the Constitution and the brute facts of political reality runs through much of Fiss’s career, which began during the Warren era but ran parallel to more than four decades of a conservative-majority Supreme Court. Nowhere is this captured more poignantly than in one of his most influential articles, “Groups and the Equal Protection Clause,” published in 1976 in Philosophy & Public Affairs. In it, Fiss argues that the 14th Amendment’s equal-protection clause establishes an “ethical view against caste”—and, in particular, against the subordination of African Americans. Fiss contends that because the clause was born of an effort to redress slavery and its effects, we should understand it not as insisting on anodyne color blindness, but as a command to combat practices that maintain a perpetual underclass. On this view, the clause would prohibit not only laws and practices intended to harm African Americans but also those that have that effect, regardless of intent. Based on this reading of the amendment, affirmative action would be not only permissible but required as long as racial subordination remained a reality.
The Supreme Court has long rejected this approach, insisting instead on reading the clause as requiring color blindness; conservatives then use this reading to challenge affirmative-action programs designed to help African Americans. Part of the Court’s reluctance to accept Fiss’s vision is the sheer difficulty of implementing such a mandate: So many laws and practices have disparate effects on African Americans that the judiciary would potentially be supervising and seeking to eliminate racial disparities in vast swaths of society. Calibrating and measuring that intervention would be challenging, moreover, because the equal treatment of “groups” is much more difficult to define than the equal treatment of individuals. In a world shot through with disparities, which ones demand judicial redress?
These concerns about the institutional capacity of courts are not wholly unwarranted. But they have led the Supreme Court to limit its intervention on this subject to laws that intentionally discriminate on the basis of race, leaving unaddressed the structural racism that continues to relegate most African Americans to the underclass. The anger and frustration reflected in, for example, Ta-Nehisi Coates’s Between the World and Me is a result. Injustice unaddressed remains an open wound, and until we address it, the constitutional promise of equality remains hollow. In Fiss’s constitutional world, the courts would be dedicated to solving this problem, not resigned to tolerating it.
I was a student of Fiss’s in my first year in law school. To a young and deeply skeptical student, he communicated a passion for law’s potential as an engine of social justice that has inspired me throughout my career—even as I, like Fiss, have been confronted again and again by a Supreme Court very different from the Warren Court. I am not alone, either: Fiss’s influence can be found throughout the legal and academic world. Some of the nation’s leading scholars and civil-rights advocates have been inspired and influenced by him, even as he was shaped by the people he writes about in Pillars of Justice.
Fiss’s vision, refracted in this book through the portraits of others, is idealistic in both senses of the word: It appeals to what is best in us, and it is also unrealistic. Fiss fully recognizes the tension, and he has spent his career arguing with colleagues and students about the necessity of confronting and resolving it—not by condemning law’s reality, but by appealing to its possibilities. Owen Fiss has no doubt about where law’s greatness lies: in the attempt to articulate and implement the ideal of justice in the face of very real challenges. Now, more than ever, that vision is under attack. Now, more than ever, it is precisely what is needed.
