Courts

Five Guys, A Gal, And A Gendered SCOTUS Narrative

In which I discuss a book review.

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There are times when legal academia frustrates me. Okay, that’s all the time.  The most frustrating thing for me is the absolute reverence with which law professors stan. Instead of discussions of ideas, the world of legal academia often times falls into an eighth-grade realm of gushing over the popular kids at the table. It’s an anti-intellectual component of legal academia, to believe that someone’s article or book is full of merit merely because of the name on it.

So when a review of a book makes critical points, you would expect SOME discussion of it on the relevant listservs. I might have missed it. My searches may have erred, but I couldn’t find it. Hence this blog post.

The thing which ought to be discussed more? Professor Lisa Heinzerling’s book review, “The Rule of Five Guys.” The book Heinzerling is reviewing is “The Rule of Five: Making Climate History at the Supreme Court” by Richard J. Lazarus. Heinzerling and Lazarus are both big names in the environmental law community. The book, and the review of the book, is a discussion of the historic Supreme Court case, Massachusetts v. EPA.

Heinzerling’s launching point is a discussion of Lazarus’s reverence for the rituals and traditions of SCOTUS. It paints a picture of a careful and considerate SCOTUS, collegial enough to eat lunch together, and who pay careful attention to precedent. Heinzerling disputes those characterizations, instead suggesting the Supreme Court justices are not that reverential, and perhaps aren’t that collegial.

To me, Heinzerling is suggesting that Lazarus’s eagerness to weave a story about those hallowed halls is what causes him to stop keeping his eye on the factual balls. And perhaps it is the same reverence that environmental law professors have for Lazarus that causes them to not answer my tweets when I ask “Hey! Did I miss the discussion on the listservs about this book review!  HELLO! HEY! I’M TALKING TO YOU!”

But the meat of the piece is its take on Lazarus’s view of the case itself. If you teach environmental law, this is the part of the piece that takes your breath away (no pun intended). The fight against climate change is being lost in the Supreme Court, and likely will continue to be as the justices become increasingly conservative. The “unfinished business” Heinzerling speaks of is our future.

If you teach administrative law, Heinzerling hasn’t forgotten you, although she makes clear that she thinks Lazarus has. In Heinzerling’s view, Lazarus treats the administrative law issues as a “sideshow.” As Heinzerling points out, one of the backbones of administrative law in the United States is transparency, which is why we compel administrative agencies to engage in reasoned decision-making (something SCOTUS is not obliged to do). The only remedy for the EPA refusing to regulate greenhouse gases is to kick it back to the agency and tell it to think again (and provide reasoned decision-making).   According to Heinzerling, Lazarus views this as a feint or a sad compromise, but administrative law professors teach this every day.

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The brilliance of the piece is what it brings to the table to supplement the record. This is an environmental law and administrative law case, but the interactions (and the depictions of those interactions) in Lazarus’s book could be a great Feminist Legal Theory reading.

Heinzerling takes Lazarus to task for his depiction of the inside baseball related to the case. Lazarus’s narrative surrounds six characters, that he describes as “five guys” and a “gal.” But Heinzerling points out that she and other women played key roles, but the narrative of the book overlooks it. This puts her in an awkward position, which she describes this way. I quote it at length because this is OMG SO GOOD:

I am critical of Lazarus’s narrative despite the fact that I come off pretty well in it …

“What more can I ask for from a history of a case in which I was so deeply involved? How can I object to Lazarus’s narrative when it contains praise for me? To ask for more from Lazarus—to insist that he fully credit my substantive work on the case, and that of other female attorneys, and to question his narrative placing several men at the center of the victory in the Court—seems ill-mannered, maybe even ungrateful or greedy. Yet I am also acutely aware that my fear of seeming ill-mannered, ungrateful, or greedy has a great deal to do with the fact that I am a woman. An easy way for a woman to have her work—including a book review in a law journal—dismissed is for her to come off as unpleasant. The conundrum a woman confronts, then, is that she risks leaving her work minimized by others if she says nothing about their sidelining, but she also risks having her work minimized by others if she speaks up.”

Heinzerling is very careful in her discussion of this particular issue.  She points out in the book where emotions are attributed to her. She describes the odd characterization of regular strategy discussions as seeming warfare.  And, as I read some of this, I think there might be a depiction of what might seem like a heroic male who, on his own, saves the day.

That focus on the “five guys” is no surprise, for it seems Heinzerling was not consulted much. The source material for Lazarus’s book appears to be interviews with the “five guys,” and a very brief one with Heinzerling. More interesting, apparently some or all of the five guys gave Heinzerling’s emails, as well as other emails, to Lazarus. Heinzerling deftly describes that the email disclosure not only was inappropriate, but biased AF:

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I had not expected these confidential emails to be made public. Lazarus did not tell me he had my emails and draft briefs until our one, brief conversation about his book project, in which he referred to them while explaining his own theory of my brief-writing process to me. The person or persons who supplied Lazarus with my emails did so selectively and in secret, omitting emails crucial to understanding the full personal story behind the case and failing to tell me they were giving my emails to Lazarus…. The selective disclosure of emails to Lazarus should have tipped him off that not everyone he was talking to was playing straight with him. Yet Lazarus’s narrative appears to take as gospel the five guys’ version of events.”

Damn. At this time, should we just gush over Lazarus’s scholarly impact score or … no, never mind.

This, to me, is the benefit of reading things outside my own area of interest. I learn a lot.

Heinzerling’s book review teaches me some things about academia, too. The most important one is there might be too much gushing and not enough criticism in legal academia, particularly when it comes to prominent players in the academy. People dare not criticize key scholars except perhaps in minor point-scoring ways, to show cleverness but not to raise the ire of the scholar.

Second, I think there is way too much side-by-side play in academia. What I mean by that is that people publish, see an article, and move on. “What are you building?” “Oh, I’m building a male-biased interpretation of a famous SCOTUS case, you?” “Cap and trade!” And repeat. There is not enough engagement in scholarship.

I’m grateful to Leah Litman for her tweet about this book review. It was also sent to me by a trusted colleague and friend in the know who reads everything in their area.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at [email protected].

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