Sunday, October 13, 2013

The Making of Mark Tushnet

The first time I ever noticed Mark Tushnet was 45 years ago in a class on the history of English law.   He suggested that he thought that maybe we had been to quick to dispense with outlawry as a form of social control.  I thought the remark clever, suggestive and probably good for a couple of extra points though I couldn't escape the notion that he probably enjoyed being a bit provocative.

The next time I noticed him, he had become one of the linchpins of the Critical Legal Studies movement, then the hot new thing in speak-truth-power law scholarship.  I'm vague on details (and the online CVs I've seen don't include his early stuff).  I recall he was writing a lot of those days (he seems always to have written a lot).  He remained clever and suggestive, but as I remember it, he pretty quickly moved beyond provocative to downright abrasive.  He seemed to enjoy ripping the socks of assorted feet of clay.

If you remember those days, I suppose you might say I have characterized the whole mischievous CLS crew, but Tushnet, though seemingly at the center of the action, always appeared to me to be his own man: a bit more serious, less juvenile--perhaps better "less frivolous"--than some of his CLS colleagues, a number of whom seemed to be cossetted Ivy League seminar brats determined to pee on their own bread.

I didn't pay much attention to Tushnet's work for many years--I've never in any serious way done con  law.  But I did read and enjoy his American Law of Slavery, 1810-1860, which I suspect might be one of his lesser known works.  I also skimmed at least one of his two books on the late Justice Thurgood Marshall for whom Tushnet had clerked.  I enjoyed what I read and in my recollection I found something there that I hadn't noticed in Tushnet's work before: a thread of warmth and affection for the brave old man (maybe it was just projection: Marshall has long  been a hero of my own).

I can't remember, then, exactly what prompted me to pick up A Court Divided, his history of the Rehnquist court, but I remember reading it with great enthusiasm over a long weekend while I was on my own in DC about 2006.  In some ways, it reminded me of what (little) I already knew of its author: serious, diligent, shrewd, but still independent minded.   Also firm in its views although I missed the edginess that I had noticed earlier (I went so far as to steal an observation of his for a talk I gave to a bar forum in  Fresno later that year.  "I think that Thomas is smarter than people give him credit for," I said (muted murmur of assent from the audience), "and that Scalia is not as smart" (undercurrent of growl).  On reflection, I really think he had Scalia's number: smart but shallow, a debater-boy, probably better suited for a Sunday morning talk show than the nation's highest court).

This is really a long buildup to a shoutout for In the Balance, his latest, a kind of a sequel to his Rehnquist book, certainly the best overview I've seen so far of the Roberts court.  Like his Rehnquist book, this new one is a remarkable mix of the doctrinal and the political.  He offers some excellent insights on the contrasting agendas of Democrats as against Republicans in seeking appointees to the high court; also a wonderful sketch of the nature and content of the "Supreme Court bar"--the small gaggle of lawyers (formerly including Justice Roberts) who do an outsized share of face-time with the justices on the bench.  But most of the book is a detailed account of the major cases: not just what they say, but how they got there, with some thoughts about what it tells us of the nature of the process.  It's pretty much of a lawyer book, not a popular book;  not for the faint-hearted, but on the off chance that I number among my readers anyone who is or soon will be tackling con law class, I'd heartily recommend it as near-essential bedside prep reading.

In short, it's got the virtues you would have seen in the young Tushnet, mostly cleansed of the impurities.   And I guess you could say I saw this coming in  my only other direct personal contact with the author.  I was on the elevator at Georgetown Law School one day, where he was then on the faculty--I guess this would be 2006, just after I had read he Rehnquist book.  I saw this short, chubby, blondish, baldish guy behind me.

"You Mark Tushnet?"  I asked.


"I  enjoyed your book."

Momentary pause. Then: "Well, the publisher said it earned back its advance."

The door opened and he went out of my life, I suppose forever.



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