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I the Privatization of Protection: the Neoliberal Fourteenth Amendment The Privatization of Protection: The Neoliberal Fourteenth Amendment by Corinne Blalock Graduate Program in Literature Duke University Date:_______________________ Approved: ___________________________ Michael Hardt, Supervisor ___________________________ Robyn Wiegman ___________________________ Fredric Jameson ___________________________ Ralf Michaels Dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate Program in Literature in the Graduate School of Duke University 2019 i v ABSTRACT The Privatization of Protection: The Neoliberal Fourteenth Amendment by Corinne Blalock Graduate Program in Literature Duke University Date:_______________________ Approved: ___________________________ Michael Hardt, Supervisor ___________________________ Robyn Wiegman ___________________________ Fredric Jameson ___________________________ Ralf Michaels An abstract of a dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate Program in Literature in the Graduate School of Duke University 2019 Copyright by Corinne Blalock 2019 Abstract This dissertation, “The Privatization of Protection: The Neoliberal Fourteenth Amendment” examines how the importation of private law and free market frameworks into public law have reshaped the Supreme Court’s understanding of equality and due process in areas as diverse as international arbitration, access to abortion, and affirmative action. My research draws on both legal and critical theory methods, reading studies of political economy alongside analysis of doctrinal and historical sources to explore how the rhetoric of the market transforms and limits the ways we imagine our society and the role of government in it. This dissertation traces how the embrace of the models of efficiency, choice, and human capital by both liberal and conservative justices alike has eroded the law’s protective role. Equal protection and due process have been redefined according to the needs, logics, and limits of the market with consequences disproportionately borne by the poor and working class. iv without Dedication For Abe Geil and Dana Remus, without whom I never would have begun this project; for Laura Jaramillo and Jess Issacharoff, without whom I never would have finished it; and for my family, especially my brother Lucas, without whom I never would have survived it. v Contents Abstract .......................................................................................................................................... iv Acknowledgements ..................................................................................................................... ix Introduction ................................................................................................................................... 1 I. Defining and Critiquing Neoliberalism ........................................................................... 2 II. The Role of Protection ..................................................................................................... 14 Chapter One: The Devil’s in the Details: Privatization and Anti-Collectivity in Procedural Due Process .............................................................................................................. 31 I. Property and Efficiency Logics: Evolution of Due Process Since the 1970s ............. 38 II. Forced Arbitration ........................................................................................................... 45 The Extension of Arbitration’s Reach .............................................................................. 46 The Path to the Privatization of Public Law Rights ....................................................... 50 Circuit City v. Adams (2001) ............................................................................................... 52 III. Anti-Collectivity and the Withering of Class Actions ............................................... 61 Wal-Mart v. Dukes (2001) .................................................................................................... 65 Ascertainability and Judicially Created Obstacles to Class Actions ........................... 73 IV. Intersection of Arbitration and Anti-Collectivity ...................................................... 75 American Express v. Italian Colors Restaurant (2013) ........................................................ 81 Toward a Politics of Tedium ............................................................................................. 92 Chapter Two: Privacies Collide: The Privatization (Il)logics in the Court’s Abortion Jurisprudence ............................................................................................................................... 96 I. Origin of the “Right to Choose” ...................................................................................... 97 II. The Funding Cases: Maher v. Roe (1977) and Harris v. McRae (1980) .................. 109 vi Justice Powell and the Disappearance of Class ............................................................ 110 Consumer Subject ............................................................................................................. 116 Equal Protection Analysis ............................................................................................... 120 Expanding the Feminist Critique of the Funding Cases ............................................. 121 III. Planned Parenthood v. Casey (1992), Human Capital, and Feminist Critique ... 125 Casey, Judicial Statesmanship, and Estoppel ................................................................ 127 Human Capital and the Critique of Choice .................................................................. 137 IV. The Paradox ................................................................................................................... 147 Chapter Three: Market(able) Equality ................................................................................... 161 I. The Hollowing Out of Equality .................................................................................... 162 II. Justice Powell & the Reprise of Market Equality ...................................................... 172 III. City of Richmond v. Croson (1989) and the End of History .................................. 179 IV. Market Equality Meets Human Capital .................................................................... 183 A New Property Logic: Human Capital ........................................................................ 186 Grutter v. Bollinger (2003) and The Problem with Diversity ....................................... 191 “Critical Mass” and the Construction of Diversity as Surplus Value .................. 203 Time for Affirmative Action & Faith in the Market .................................................... 207 V. The Shell Remains .......................................................................................................... 213 Parents Involved in Community Schools v. Seattle School District (2007) ....................... 214 Fisher v. University of Texas at Austin (2016) .................................................................. 221 Coda: State Action in the Age of Corporate Governmentality .................................... 230 Conclusion .................................................................................................................................. 237 Works Cited ............................................................................................................................... 243 vii Biography ................................................................................................................................... 252 viii Acknowledgements I am grateful to Michael Hardt, Robyn Wiegman, and Fredric Jameson for a decade of profound insights, intellectual generosity, and unwavering support. I am grateful to Ralf Michaels and Jed Purdy whose guidance and critical interventions have helped shape not only this project but my development as a scholar. I am grateful to Guy Charles for being my strongest advocate even when we disagreed on the goal. And finally, I am grateful to Benjamin Douglas for consistently being my most incisive and generous reader. ix Introduction “In the early days, many people were criticizing the term [‘human capital’] and the underlying analysis because they believed it treated people like slave or machines. My, how the world has changed!” --Gary Becker, Human Capital: A Theoretical and Empirical Analysis with Special ReFerence to Education The image of the Supreme Court as standing apart from politics has all but dissolved. More decisions break along party lines under the Roberts Court than at any other time in history. In fact, many of the most partisan issues—including abortion, affirmative action, and gun control—are fought on the terrain of constitutional interpretation. Transformation of the federal judiciary is widely hailed as the Trump Administration’s greatest and most consequential achievement. So, far from the world the legal realists confronted, politics is now widely touted as the best lens through which to analyze the Supreme Court. This dissertation asserts that the near exclusive focus on the liberal-conservative divide actually occludes our understanding of a major function of the Court in the present era. The partisan lens creates two distinct forms of invisibility. First, the
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