Published May 5, 2022
Episode 29 of The Baldy Center Podcast features Anya Bernstein discussing judicial populism, the bureaucratic role of law clerks, and the dangers of exclusionary worldviews in law and society.
Keywords: populism, judicial review, bureaucracy, bureaucrats, authoritarian populism, democracy.
The Baldy Center for Law and Social Policy, University at Buffalo
Podcast Season 4, Episode 29
Podcast recording date: March, 2022
Host-producer: Edgar Girtain
Speaker: Anya Bernstein
Podcast transcript begins.
Edgar: Hello and welcome to the Baldy Center for Law and Social Policy podcast. I'm your host Edgar Girtain. To begin today's episode, I'd like you to think about the last time you went to the DMV. When you were there waiting in line to renew your driver's license, you were interacting with one small part of that mostly invisible machinery of society that we call bureaucracy. Depending on how your experience went at the DMV, or the university registrar, or your local SNAP office, you might rightly ask, why do things have to be this way? What role and what purpose does bureaucracy serve? Or perhaps, if you turn the power of your thought to the bureaucrat herself from the opposing side of the desk, you might ask, what makes a good bureaucrat? What are the office politics this person has to manage once they finish helping me renew my license? In today's episode, you'll hear a conversation with University at Buffalo School of Law professor Anya Bernstein about all this and more. Enjoy.
Professor Bernstein, thank you very much for being here with me today.
Anya: My pleasure.
Edgar: So, in preparing for this interview, you sent me a lot of papers. And they were all on very different topics as well. And they were all also very recent, which leads me to my first question, which is a two-part question: I know that you have co-writers, but my sense is that you're a virtuosic and prodigious writer, your proposals and outlines are as long as papers, and your papers are as long as books. So, it seems like you have a lot going on. I'm curious, what motivates you to write and how do you go about managing collaboration with your co-authors?
Anya: Hmmm. So one thing, just so I don't take credit for too many words, I think my papers are not so long in my discipline. In law, people tend to talk a lot, and I actually have theories about why that is - having to do with the traditional lack of PhDs and the lack of peer review and so on - there's a lot of, kind of, self-justification that needs to happen and a lot of building up in the paper where, I think in other disciplines you build up elsewhere and then each paper is just kind of a, you know, protuberance on top of that building up. But anyway, so, I'm not so super prodigious in the context I’m in.
Edgar: So humble.
Anya: Um, what propels me to write? I mean, sometimes an idea just, you know, gnaws away at you, or a question gnaws away at you. Why is this like this? I think often reading is what propels me to write. So, I read in my disciplines, and I read legal cases, and, I mean, I have kind of overarching interests that, you know, lead me to see things, that lead certain things to pop out to me. But I think in terms of what drives me to write itself, it's that gnawing feeling when I’m reading something and the same thing comes up over and over that seems, somehow, either to not make sense, or to be a sign of something else that's going on, or just, you know, maybe something that I find really interesting. And that's often what propels me to write.
And then more recently, jumping to your second question, my collaborators have propelled me to write. I’ve never co-written before as much as I have in the last couple of years. I co-wrote one article as a grad student and since, you know, other than that it's all been solo. And then in the last few years I’ve had a number of co-written papers. And one of those, my collaborator propelled me to write. I was visiting his university and we had breakfast together and he basically said, “I have a proposal. I think we are thinking along very similar lines and we should write together on this theme.” That's the judicial populism piece. And that totally galvanized me, because it was, um - you know sometimes you see really eye to eye with someone and they can say something that you haven't seen, but it's the sort of thing that you would have seen, and so it strikes particularly deep and that's what happened with us there. So then we developed that paper together.
And another recent collaboration happened very similarly. Um, my colleague, Christine Bartholomew and I, we teach civil procedure. We, you know, each take half of the first-year law class every year. And so we talk about teaching a lot and we talk about civ pro a lot, and there was a very important case that came down that we basically just started texting about, like, this isn't interesting, let's take a look at this. What do you think about this? And we just kept, you know, in the intricacies kind of texting, texting and finally realized - there's something in here that we both want to write on together. And we kind of have different tastes usually and slightly different approaches to things, so, it was fun finding the, kind of, Venn diagram overlap of where we both wanted to be.
And the third collaboration actually has been going on for a long time, because that's an interview project. So it's an empirical project, which takes me forever, both to do and to write up. And we're just writing now. And that one, in a sense, grew out of a really long-standing interest I have in bureaucratic functioning and kind of the social life of bureaucracy. That, yeah, I called up my old professor, actually, to ask her advice on this project I wanted to do and she said, “that sounds really interesting, you want to do it together?” So then we started collaborating on it.
Edgar: So, what is, um, judicial populism?
Anya: So, judicial populism is a style of writing judicial opinions that shares some of the key traits with political populist rhetoric. And populism, not in the sense of 19th century agrarian movements that tried to expand the range of people who participate in politics, but rather, the quite opposite move in the post-cold war era, basically, of political movements that try to use the mechanisms of democracy - and primarily elections - to install anti-democratic leaders. So, we've seen this movement in a lot of the Eastern Bloc countries - Hungary and Poland primarily. This is something we saw with Donald Trump in the US. An attempt to use the election form to get somebody installed who would then not be subject to further elections, but rather impose a kind of universalizing but exclusionary political worldview.
Edgar: So, you had a pretty interesting definition of populism in the book - or the piece that you had written - and I really enjoyed reading about it because it wasn't the, kind of, the common definition of populism. Could you kind of explain a little bit about what the dynamics are - the social dynamics of populism and who it includes and how it works?
Anya: Sure, so we actually, for that, surveyed the political science literature writing about this kind of post-Cold War turn to authoritarian populism, and we kind of distilled three main traits that it seemed like everybody agreed that these populist movements had. The main one of which is anti-pluralism, so denial of the legitimacy of having multiple viewpoints, or multiple sets of interests or values, within a democratic state. Which, in itself, you know, is obviously pretty much in tension with any conception of democracy, and especially a republican conception of democracy, where the whole assumption is that there are different viewpoints and part of the point of democratic government is to find a way to negotiate among them so that people don't kill each other, you know, and people, kind of, can live with each other without too much resentment.
So, that's one, and that anti-pluralism goes both ways. So, populism says there's one people with one will, and there's one leader who can kind of intuit, or sense, that will and embody it and enact it. And that leads to another couple of key traits, one of which is that populism disdains institutions of democracy. So institutions where different viewpoints and interests are negotiated out and deliberated over, because if you only have one people with one will and one leader who embodies that will, then you don't need institutions like legislatures and agencies where different interests are negotiated. Because there aren't different interests - at least not different interests that are legitimate, right? Everybody who's outside of the one people, one will that's articulated by the populist is somehow not part of “the people.” Not a real American. An enemy of the people. Something like that.
And that way of phrasing things suggests the final key characteristic, which is a, kind of, good versus evil, us versus them world view. A Manichaean image of politics where, rather than having multiple differently engaged points of view, values, interests, that are legitimately different and have to, kind of, compete for popularity and for, you know, a place on the stage every time around, populism suggests that politics is a fight to the death between the good guys and those who opposed them. And so, it makes negotiation very difficult and it makes the idea of having different world views itself as though it were illegitimate. So, all of this is deeply in tension with the whole idea of democracy.
Edgar: To take a little side note here, because you mentioned the word Manichaean - and that was the first time that I’d encountered that word in legal writing - and I just want to make sure with you, are you referring to the Maniki religion from the ancient world? The dead religion? Is that-?
Anya: I mean, that's where the word comes from. I think the word has, in English, come to mean - I mean, unless you're writing religious scholarship - I think it's come to mean this kind of good versus evil world view that I’m describing.
Edgar: Okay, yeah. Okay. Good. Good. So, does populism - I mean, must it be exclusionary?
Anya: I think that's one of the key characteristics. That, kind of, insistence that there is one people one will, with its claim to universalizing encompassment, right? Everybody feels this. Everybody who's a real American feels this. It's, kind of, intrinsically exclusionary, because, in the real world, there is no one people with one will. Instead, we have a highly differentiated society with lots of different viewpoints, experiences, interests, values, etc. And what that insistence on one people one will does, is it says, I encompass everybody - at least everybody who matters. Everybody else doesn't matter. They don't count. They're the enemies of the people, they're the outsiders. So, it's exclusionary in that way in its very claim to universalizing.
Edgar: It seems like it would be a very easy trap to fall into, because, when I was reading, I think it was the dissent that Justice Scalia had written that you referred to in the paper, I don't think his comments were meant to be exclusionary, necessarily. And actually, on the contrary, his comments were meant in a sense that represents good faith in the values of democracy. That he was trying to represent, at least what his perception of what the public wants, or what the public would want. And this is how democracy works, or republican democracy, we elect people who then represent our interests, right? So, how does one cross the line from democracy to populism? And must it be intentional? If it's unintentional, is it still populism?
Anya: A lot of people ask that. So, Glen and I - my co-author - we actually have ever so slightly different views on the intentionality issue. But since I’m the one doing the interview, I’m just gonna give you mine. I don't think intention matters at all, actually. And I think, especially if you're a judge, your words have power. Your texts, sometimes, become the law. Even when you're in dissent, you have public effects through your dissents. That is, first of all, in my opinion, what's important, because I’m not a psychologist, you know. I have neither the tools nor the interest in what Justice Scalia feels in his heart, or anybody else.
But second of all, yeah, I think that's what we have access to, you know? None of us really have access to whether somebody's acting in bad faith. But we can see what the public effects of their speech are, and I think that's where we want to stay focused, personally.
Edgar: And should they be held accountable for that? What does accountability even look like?
Anya: Yeah, that's kind of a second order question for me. I mean, I think, for me what's important in writing this paper is that we as readers become aware that these characteristics that, I think, many people find problematic in the political sphere - these kinds of populist imaginings of how the world works, that undermine the plurality and contestation that's necessary to a republican democracy - they have made their way into legal discourse. And, in fact, have begun dominating legal discourse without anybody noticing the really anti-democratic implications of that rhetoric.
And so, accountable? I mean, sure, in the sense that we should recognize it and call it out when we see it. We should make judges aware of it insofar as they aren't already. And I’m sure there are people, you know, there are some that are and some that aren't. I’m sure many people who use this rhetoric use it just because it's ambient. it's - it's in the air. And as it's used more and more, it becomes normalized more and more, and so more and more people use it because that's how judge is write, right? There's this, kind of, recursive, self-feeding aspect to it that we think is really pernicious because that very way of speaking about the demos undermines the key qualities of democracy.
Edgar: That sounds like a very difficult problem to address.
Anya: Indeed, it is.
Edgar: And obviously the consequences are very high. And obviously, not everyone's going to read your paper - unfortunately. Although, if they're listening to this podcast they should.
Anya: Well, you know, part of the point here - I mean, I don't think that one paper - I mean, maybe some papers can do this - our paper is not gonna, you know, turn the tide of judicial rhetoric. But I think of our paper as part of a – actually, a larger movement nascent, I think, in legal scholarship of really focusing on the qualities of republican democracy, and coming up with, almost like a conceptual vocabulary, that people can use to evaluate and discuss legal theory, court opinions, other kinds of legal writing - from the perspectives of republican democracy, rather than getting caught up, as I think many of us have been, in the rhetoric that the legal theories themselves provide. So, people tend to talk about textualism in the terms that textualism presents. But, in fact, you know, from a kind of semiotic perspective, the writings of textualism do something quite different than what textualism claims to be doing.
And that's not unusual, you know. Most ideologies are like that. But if you don't have an articulated way of talking about it, then you can be trapped within the, kind of, world view or imaginary that the ideology itself builds rather than being able to step outside and analyze it a little more dispassionately. Which we think really reveals the tensions with democracy and reasons why we shouldn't be pursuing this kind of rhetoric.
Edgar: One of the things that I found alarming reading that paper was that I started to ask myself if this concept of populism - if it can apply outside of the political sphere to the judiciary sphere - what might it look like in other spheres? In art, in teaching? And I realized that wow, this language has become very pervasive. It's almost the zeitgeist of the time. And it's really insidious because it's this two-edged sword that, that often the speaker feels that they are acting with complete democratic good faith and good values, when in truth, what they're saying is terribly exclusionary and making assumptions about the role that the speaker plays in a democratic society. It's assuming a role of power and voice that they don't have, or may not have, or may not be privileged to.
And I’m repeating myself a little bit. It’s just one of these things that stuck with me that was a surprise reading it. Last night I was camping, actually.
Anya: But in the woods reading about judicial populism. It's like a ghost story. Well, you know, I do think that in order to avoid that kind of viewpoint, you kind of need to have some humility. You need to realize that your perspective is always going to be limited. That what seems obvious to you, seems obvious to you because of your particular background experiences, beliefs, blah blah blah, etc. And that it may not seem obvious to others, not because they're idiots and not because they're evil, but because they're coming from a different place. You know, perhaps literally or figuratively. And, yeah, I mean, I think humility is not an attribute that most federal judges aspire to. And so, there's often a little bit of a disconnect.
Edgar: I think what you just said really kind of dovetails nicely into the question of - when we talk about the personalities of judges, right - judges are bureaucrats in a sense - I mean, what are the carrots and sticks of society that form bureaucrats personalities? You know, what kind of personality makes a good bureaucrat?
Anya: That's a very tough question. Um.
Edgar: I mean, what is a bureaucrat?
Anya: Most generally somebody who's working in some sort of administrative system. So it's super broad. I mean, I agree with you that judges are bureaucrats. They're working within the judicial administration. And I think there's something really funny about - especially the American system - where we spend so much energy trying to deny that bureaucratic status, you know. There's a real judicial exceptionalism in the way American legal theory talks about judges as though they were, kind of, heroic figures who, you know, emerge from Olympus to guide us rather than people who are working within a system that we have set up for the resolution of public and private disputes. And, you know, who are hired to work in that system.
Edgar: It goes against the very foundations of American culture, you know. Which are individualism - you know, rugged individualism, exceptionalism, right? A bureaucrat is the opposite of those things in a lot of ways.
Anya: Yeah, and actually, a lot of my work is aimed at, kind of, rehabilitating the idea of bureaucracy and of bureaucrats both as social beings, like people who exist in society, are part of their societies, you know. In a democracy are helping to regulate their societies at the same time as they are subject to the very regulations that they make. [They] are not in fact separate from the society in which they find themselves, either culturally or in terms of power. So, that's - a large part of my work is concerned with that through ethnography of bureaucracy, through interviews with bureaucrats, but also in, kind of, tying together - the way that you just tied together - the concept of bureaucracy with the judiciary.
So, a lot of my work has centered on the notions of legal interpretation. So what happens - so you have a law, and then something needs to happen with that law in order for it to have effects in the world, you know. The law doesn't just come into the world and have effects by itself. Somebody needs to implement it in some way. Put it on the ground, interpret it. And our theories of legal interpretation tend to be very, very judge-focused, judge-heavy. Even though our practices of legal interpretation are actually very administrator-heavy, because administrative agencies within the government do much, much more legal interpretation than courts do. And their interpretations have much broader effects. They affect, you know, every aspect of our material world, our economic world, and so on.
And one thing I’ve been trying to bring to the fore is understandings of how administrators actually go about that work of working with statutes and getting them to, you know, become alive on the ground. And trying to - this is something I’m working towards right now, actually, in, kind of, papers I’m writing now and the stuff I have lined up immediately - kind of, experimenting with what it might look like if we think about legal interpretation as prototypically done by bureaucracies rather than prototypically done by individual judges. And the distinction I see there - just to, kind of, lay it out, I think, in fairly simple terms is - in legal theory, the vision, the kind of paradigmatic image of legal interpretation, is of a judge sitting with a text and coming to understand it through various fairly esoteric methodologies. So there's a kind of cognitive process that happens in the, you know, communion of the judge with his text. And I say his advisably because I think in this paradigm it's very much a man who's doing this job.
Uh, in a completely different vein you have what agencies do when they work with legal texts. And agencies, compared to this, you know, solitary judge with a candle in his room reading a text, they're like a party. I mean you have tens, scores, sometimes hundreds of people involved in figuring out, not really what the legal text means, but what you should do with it. You have various kinds of specialists in the agencies, you have lawyers, you have outside parties, you know, industry representatives. You have just everyday people who are making comments over a very long timescale. It's much more multiple.
Edgar: Well, judges are trusted to have a certain amount of discretion in their job and to be able to exercise their own interpretation, their own free will. Whereas when we talk about bureaucracy, we don't give any individual actor so much discretion, right? Because accountability is not on any one person, it's on various people. And so, there's links that tie them all together, right? So they're less autonomous in a certain sense.
Anya: I think that's true, and I think that increases the chances of accountable behavior. Because you don't have so much riding on any one idiosyncratic individual who may not even recognize that what seems obvious to him is only obvious to him because of his particular background and experience. Instead, you have lots and lots of voices representing lots and lots of different angles, expertise’s, positions, interests, etc., that are all vying and negotiating and deliberating with one another. That seems like a pretty good image of democracy, doesn't it?
Edgar: Do you think bureaucracy - it could be one of the answers to combating populism?
Anya: Yeah, I do. I mean, I think the bureaucratic system, the administrative agencies, are one of if not the key site in our system for the negotiation of pluralistic views and interests. That's where it happens. And in a way, I think the bad rap that they get - on purpose, or whether this is purposeful or not - undermines that ability to have real deliberation within government.
Edgar: I mean, a lot of the evaluations that you're making imply, I think, that you have bureaucrats who are competent and who are very good at their job, right?
Anya: Moderately good.
Edgar: Yeah, right. There's not so much pressure on anyone because there's less people, right? But in order to have a system - a functioning bureaucracy - it's important that the people that are feeding into that bureaucracy, the talent that's feeding into it - I mean, it has to be to a very high standard, right? If you look at - you know, I live in South America, I live in Chile, right? And I am a bureaucrat in my life here. And so, often what we see here, it's kind of the opposite. There's a lot of trust that's placed in executive decisions and individuals because there's a tacit acceptance or acknowledging of the fact that bureaucracies are utterly broken and dysfunctional and incompetent. And they're unable to move anything forward, right? So, the idea is that we trust the superhero director, right? Or executive person to get the ball to the finish line. Anyway, these are all just so wonderfully complicated questions and topics, and I’ve really enjoyed speaking with you.
Anya: Thanks, it's been great. It's great talking to you.
Edgar: I hope you'll come back for the podcast another time, because there's just so much that could be talked about here that's really fascinating. Is there anything that you'd like to say to the listeners? Is there anything that we've left out?
Anya: I have the shortest paper ever written. Can I direct them to that? That might be fun. It's like 15 pages, and it combines - something we haven't talked about is that I am an anthropologist by training before I became a legal scholar - and this is a piece that, kind of, combines my linguistic anthropology background, specifically, with my administrative law interests. Which is not a sentence I ever thought I’d be saying. But I finally managed to do it in 15 pages and I think it's kind of fun. It's called Saying What the Law Is, and it's on SSRN if you want to read a draft. Tell me about it, give me your comments.
Edgar: Okay, thank you. Feel pretty good about it. You've been wonderful, absolutely wonderful. Thank you.
You just heard a conversation with Anya Bernstein, professor in the School of Law here at the University at Buffalo. Anya Bernstein teaches and writes about administrative law, civil procedure, legal interpretation, and the cultures of bureaucracy. With training in both law and anthropology, Bernstein uses approaches from both disciplines to explore how judges and administrators legitimize their actions and imagine their government. She has done extensive research in both the United States and Taiwan, giving her work a comparative perspective. Bernstein holds a JD from Yale Law School and a PhD in sociocultural anthropology from the University of Chicago. Her work has appeared in the University of Chicago Law Review, Cornell Law Review, William and Mary Law Review, The Yale Journal on Regulation, Law and Social Inquiry, and PoLAR: Political and Legal Anthropology Review, among others.
This has been the Baldy Center for Law and Social Policy podcast. You can learn more about the Center on our website, buffalo.edu/BaldyCenter. We would also like to hear your thoughts about this podcast. Please tweet us @BaldyCenter, or send us an email at BaldyCenter@buffalo.edu. The music for this podcast was composed by Matias Homar, a PhD student here in the Department of Music at the University at Buffalo. I'm Edgar Girtain, your host. Thanks again for listening and take care.
Judicial populism is a style of writing judicial opinions that shares some of the key traits with political populist rhetoric. [...] We've seen this movement in a lot of the Eastern Bloc countries, in Hungary and Poland primarily. This is something we saw with Donald Trump in the U.S. — an attempt to use the election form to get somebody installed who would then not be subject to further elections, but rather impose a kind of universalizing but exclusionary political worldview.”
– Anya Bernstein, Professor, School of Law
(Baldy Center Podcast, 2022)
Anya Bernstein teaches and writes about administrative law, civil procedure, legal interpretation, and the cultures of bureaucracy. With training in both law and anthropology, Bernstein uses approaches from both disciplines to explore how judges and administrators legitimize their actions and imagine their government. She has done extensive research in both the United States and Taiwan, giving her work a comparative perspective. Faculty profile.
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Edgar Girtain is host/producer of the 2021-22 Edition of The Baldy Center Podcast. He is a PhD student in the music department at SUNY Buffalo, where he studies with David Felder. Girtain is a director of the Casa de Las Artes at the University of Southern Chile (UACh), and president of the Southern Chilean Composers Forum (FoCo Sur).He is an eminent composer, pianist, and writer of his own biographies. Girtain's diverse areas of work are often collaborative, cross-disciplinary, and international in ambition if not in practice.