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The recent nomination of Judge Samuel Alito Jr. to the Supreme Court unearthed yet another reminder of the continuing influence of the politics of the 1960s counterculture on our current legal and political culture. After Alito arrived at Yale Law School in the fall of 1972, he hoped that he would take his first-year constitutional law class from Professor Robert Bork, according to The Washington Post. Instead, Alito’s constitutional law professor turned out to be Charles Reich, a liberal law professor who had become a celebrity after his book, The Greening of America, became a best seller after its publication in 1970. Alito appears headed to the Supreme Court. What happened to his professor? At the time Reich was Alito’s professor, he still was widely known as a result of The Greening. The book was an unusual combination of sociology (in Reich’s analysis of “consciousness,” how people thought about their lives and work) and manifesto (in his embrace of the student counterculture). As a result of The Greening, Reich became an articulate, respectable spokesman for the youth movement. The book launched Reich on a brief (and uncomfortable) turn as a celebrity. Given his professional path before The Greening was published, neither the subject of the book nor its enthusiastic reception could have been anticipated. Reich wrote the book while he was a tenured professor at Yale Law School. He had joined the faculty in 1960, after practicing law in Washington, D.C., for a number of years — first as a law clerk for Justice Hugo Black for the 1953-54 Supreme Court term, then as an associate at the law firm of Arnold Fortas & Porter (now Arnold & Porter). As both a passionate teacher and a productive scholar, Reich used Yale as a platform for his liberal views. The Supreme Court cited two of his articles in Goldberg v. Kelly, a 1970 decision expanding the procedural rights afforded welfare recipients. One of those articles, “The New Property,” remains influential today, and is the most frequently cited Yale Law Journal article ever, according to a tabulation by Fred Shapiro, a Yale Law librarian. Although Reich received tenure in 1964, he was not satisfied with life as a law professor. He felt stifled on the faculty, and turned his attention to Yale College — auditing undergraduate English courses, spending time with college students, and teaching an undergraduate course called “The Individual in America.” In 1967, the nearly 40-year-old Reich spent the summer in Berkeley, Calif., and seemed to find his groove. “On Sundays the park is full of great sights and sounds. . . made by electric bands with such names as The Second Coming, Big Brother and the Holding Company, and The Grateful Dead,” he wrote to Alexander Bickel, another Yale law professor. When Reich returned to Yale in the fall, he resumed work on a book he had started earlier in the decade. Reich first envisioned that book — initially titled The Coming of the Closed Society — as a lament for the loss of civil liberties in the United States. But with the student revolution in full swing, Reich had cause for optimism. Beneath the veneer of the accomplished law professor lurked a Romantic spirit who celebrated the values of authenticity — which Reich saw as doing what one chooses, not what society demands — and community that the student movement seemed to offer. Reich completed his book in 1970 and called it The Greening of America. The first two-thirds consists primarily of conventional, even familiar, social science criticism. Reich described how the self-reliant individualism of early America (Consciousness I) had given way to the status-driven conformity of the corporate state (Consciousness II). He also criticized consumerism and explained how the modern corporate state fails to protect the environment. It was the last third of the book — in which Reich celebrated Consciousness III, “emerg[ing] out of the wasteland of the Corporate State, like flowers pushing up through the concrete pavement” — that distinguished The Greening of America. Essential to Consciousness III, Reich wrote, was “choosing a new lifestyle.” Reich insisted that “choice of a life-style is not peripheral, it is the heart of the new awakening.” He described the various lifestyles of the youth movement, contrasting the choices made by students with those made by their parents. Reich did not, however, prescribe a specific lifestyle; the point of Consciousness III was to respect the choices individuals made in developing their own lives. The Greening enjoyed an extraordinary reception. To the surprise of everyone, the book sold millions of copies. Immediately after its publication, The Greening was debated extensively on the opinion pages of The New York Times. Today The Greening is still a shorthand reference for the youth counterculture of the 1960s. In October, I sat down with Reich at his San Francisco apartment to discuss The Greening on the 35th anniversary of its publication. A portion of our conversation follows. What prompted you to write The Greening of America? “I came to Yale very worried about the condition of America, about the direction America was going . . . I’d seen the way things worked in my very educational five years at Arnold and Porter. That was an eye-opener for me because I really saw how power operates behind the scenes. [As the 1960s progressed,] I was disturbed by the trend toward saying that law is the servant of the economic system rather than law is what presides over both the economic system and the noneconomic part of society.” You touched on this point in your legal scholarship, for example, in “The Law of the Planned Society” (1965). Yet your law review articles read very differently than The Greening. “This issue of who does the law serve, do you feel I have adequately spelled that out in my legal work? I don’t think I did. I think I tried but I think that there is a murkiness in, say, “The Law of the Planned Society” — murky because I didn’t fully see the choice that I’m describing now. I saw it dimly. That’s the way it is, especially when you’re surrounded by people like Bob Bork and . . . many others . . . who all seemed very reasonable but they all seemed to see law as law and economics. . . . I [saw] my colleagues determined to make law a part of the economic system and I think that’s a recipe for destroying the noneconomic values that matter a lot to me.” Much of The Greening discusses the importance of “lifestyle.” What are your thoughts about the lifestyle led by law students and attorneys? “[T]he part of the 1960s [that] I thought was most relevant to law school was the part that said we need a better �diet’ than the lawyer gets. If you want to use the word diet as everything you get [from practicing law] . . . [such as] having a big house . . . [or taking] vacations in Europe. . . . I was saying this may look like wealth, but it’s actually starvation.” You clerked for Justice Black and were friends with Justice William O. Douglas. In what way are they present in The Greening? “The appeal of The Greening is [that it is] best understood as a book that embraces the viewpoint of the outsider throughout in every imaginable way. . . . Bill Douglas was an extraordinarily vivid example of an outsider in every way. His whole nature rebelled against doing things the way that everybody did things. You couldn’t have found a more profoundly rebellious person — [and] not just in the opinions he wrote. . . . [I]n a different way Justice Black was very much an outsider, more in a throwback way. I always thought he was like one of the Framers. That is, he seemed to hark back to a different America than the one we were in. . . . Justice Black had his own way of doing everything and his own way of thinking.” The Greening turned you into a celebrity. What was that like? “Well, first, I’d say it was a remarkable experience. So if you just put it down as everybody should have an experience like that — it’s like being dropped on top of Everest by a helicopter. It was bad for me to shoot my mouth off about a lot of things I hadn’t thought through or didn’t know how to say right or didn’t know what I was talking about. I mean, that was completely contrary to the way I’m accustomed [to working].” In some ways, The Greening now seems prophetic in its discussion of the corporate state and its concerns for individual rights. “Well, first of all, I feel I was a pioneer . . . in talking about people having a false view of reality. . . .[N]ow in 2005, reality is starting to break through like water flooding into a building from all directions. [Some] reality is coming from our abuse of prisoners. . . . Reality is all threatening to break into this nice, neat imaginary dwelling that we are living in. [M]ost of what’s going on now has absolutely nothing to do with the Democrats or the liberals as an opposition party; it has everything to do with reality breaking through and the Democrats just sit there and gape. . . . Remember my theme that we started with . . . about law serving the economic system versus law presiding over the whole set of values, and now what you see is that there’s more and more things [that] are happening outside the law because the law has been narrowed. And so more and more events take place that are not within the law, just outside it, like Guant�namo is outside of it.”
Rodger Citron is an assistant professor of law at Touro Law Center in New York and an occasional contributor to Legal Times .

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