What's A 'Liberal' Justice Now?

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Published on Tuesday, 26 May 2009

Written by Jeffrey Rosen, NY Times

When talking about the Supreme Court, Barack Obama has resisted the familiar ideological categories that have defined our judicial battles for the past several decades. He has made clear that despite his progressive inclinations, he is not a 1960s-style, Warren Court liberal -- someone who believes that the justices should boldly define constitutional rights in an effort to bring about social change.

It's true that Obama has cited Chief Justice Earl Warren as a judicial ideal, emphasizing that Warren, a former governor of California, had a sensitive understanding of the real-world effects of Supreme Court decisions. But at the same time, Obama has suggested that liberals in the Warren Court mold may have placed too much trust in the courts and not enough in political activism. "I wondered," he writes in his book "The Audacity of Hope," alluding to Senate battles over George W. Bush's court appointments, "if in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy."

Likewise, Obama has both rejected and embraced elements of conservative legal doctrine. The ideological antithesis of Warren Court liberals are Reagan-era conservatives like Justice Antonin Scalia, who argue that the Constitution should be "strictly construed" in light of its original meaning. While expressing respect for aspects of this method, Obama has rejected it, in the end, as overly rigid and impractical. "I'm not unsympathetic to Justice Scalia's position; after all, in many cases the language of the Constitution is perfectly clear and can be strictly applied," he writes in his book. "Ultimately, though, I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world."

By tipping his hat to Breyer, Obama acknowledged one of the two liberal justices appointed to the Court during Bill Clinton's presidency. (The other is Ruth Bader Ginsburg.) In different ways and to different degrees, each of them has championed yet another conception of the judiciary: one in which the courts, in most cases, should play only a "minimalist" role in America's democracy, generally preferring deferential and narrow rulings to broad ones. This doctrine developed in part as a strategic and defensive response to the fact that conservative activists on the Supreme Court were aggressively striking down progressive legislation. But minimalism is also principled. It urges judges to issue opinions that focus closely on the particular circumstances of the case at hand, steering clear of sweeping pronouncements about liberty, equality or justice. By so doing, the theory goes, the courts can avoid getting too far ahead of the will of the people and their elected representatives, and preserve judicial legitimacy in the process.

Yet with minimalism, too, Obama's sympathies have been hard to pin down. One leading academic minimalist, Cass Sunstein, was an informal adviser to Obama during the presidential campaign and is now the incoming head of the White House's Office of Information and Regulatory Affairs; he is often said to be someone whom Obama might someday appoint to the Supreme Court. Sunstein has argued that judges (as well as government regulators) should "prefer nudges over earthquakes," gently influencing political debates without trying to settle them. But Obama has indicated that he himself isn't a wholehearted minimalist. When earlier this month he discussed Justice David Souter's pending retirement, Obama said that the "quality of empathy, of understanding and identifying with people's hopes and struggles" is "an essential ingredient for arriving at just decisions and outcomes." In his announcement today that he intends to nominate Judge Sonia Sotomayor to the Supreme Court, he spoke of the importance for a justice of knowing "how the world works, and how ordinary people live." He seems sympathetic, in other words, to a more ambitious role for judges than a jurisprudence of the gentle nudge.

Obama's ideological elusiveness has perplexed liberal and conservative court watchers alike. Critics may see his ambiguity as just another example of his instincts to swaddle ideological divisions in the soothing rhetoric of bipartisanship and compromise, to reconcile the irreconcilable. Obama, however, may be looking to synthesize and transcend the established legal categories -- articulating a genuinely new vision for what it means to be a liberal justice in the 21st century.

In "The Audacity of Hope," Obama calls for "a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had." As it happens, the same metaphor -- of conversation or dialogue -- is now being elaborated and made more concrete in a legal context by some of the country's most notable progressive legal scholars. They call themselves "democratic constitutionalists." And they and Obama seem to be arguing along similar lines, suggesting that the courts should neither issue rarefied edicts from on high nor passively defer to the political branches but instead participate in a "dialogue" with Congress, the president and the American public to define and protect constitutional values. Although this emerging paradigm is not yet fully developed, it has the potential to transform what we mean when we talk about liberalism on the Supreme Court.

If this new understanding of legal liberalism can be traced back to a single moment, it was in April 2005, when the American Constitution Society and other progressive groups sponsored a conference at Yale Law School called "The Constitution in 2020." Taking as their model a white paper produced by the Reagan Justice Department in 1988 called "The Constitution in the Year 2000," the organizers set out to gather together a group of scholars to define a progressive constitutional agenda for the coming century. (A book inspired by the conference, "The Constitution in 2020," has just been published.) The conference brought to New Haven many of the leading liberal scholars in the country, including several who in recent weeks have been mentioned in connection with Obama: Pam Karlan, a law professor at Stanford; Harold Koh, of Yale Law School; and Sunstein, then a professor at the University of Chicago Law School.

Like the Babylonians in exile, the participants at the conference debated how best to return to the land of political relevance. Their favored judges had been shut out of consideration not only during Republican presidencies but also, to some extent, during the Clinton era, when political realities and the president's ideological inclinations resulted in fairly moderate appointees to the federal courts. At the same time, the conference participants agreed that a return to the Warren Court liberalism of the '60s would be politically impractical as well as doctrinally undesirable. They also viewed Warren Court liberalism as too backward-looking to galvanize young progressives today. They sought to nurture a new generation of legal liberals who would pose an alternative to the conservative strict-constructionist lawyers who emerged from the Federalist Society to dominate the federal courts during the Reagan, Bush 41 and Bush 43 eras.

In the ensuing years, several scholars, including Jack Balkin, Reva Siegel and Robert Post -- three law professors at Yale -- have helped articulate the position now known as "democratic constitutionalism." One of its core ideas is that courts should pursue many of the same social-justice ends that the Warren Court sought to advance, only using more modest, less uniformly activist means -- always acting in conjunction with progressive political movements. Unlike the minimalists, the democratic constitutionalists don't maintain that courts should always prefer "nudges over earthquakes;" but unlike Warren Court partisans, they don't suggest that the courts are always entitled to have the first (or last) word in promoting social progress. "Decisions made by legislatures and executive officials about our rights are just as important" as judicial decisions, if not more so, Balkin and Siegel write in an introductory essay to "The Constitution in 2020."

But though the courts ought to take their cues from representatives of the people -- and from popular political movements -- judges still have important work to do in giving convincing legal expression to those sentiments. "In a democratic society," Balkin and Siegel write, "courts best perform their institutional role as partners in a larger dialogue: they respond to popular visions of the Constitution's values and help to translate these values into law."

In other words, if the Warren Court saw the Constitution as defined primarily by courts, and if the minimalists see judges as cautious followers of political movements, the democratic constitutionalists see courts and political movements as partners, influencing each other and society as a whole. Courts sometimes act boldly and sometimes cautiously. Constitutional change ultimately flows from the bottom up, not the top down (which results in "democratic constitutionalism"), but the courts play an important if subsidiary role in codifying and extending values that the American people themselves have come to embrace as fundamental (which results in "democratic constitutionalism").

This sort of approach doesn't (and shouldn't) always yield liberal results: during George W. Bush's presidency, conservative justices working in a similar mode -- as partners with a conservative White House and Congress -- sought to turn the Constitution decisively to the right. But as Balkin and his colleagues see it, liberal justices are supposed to champion or defer to the values that they see as expressions of the Constitution's core progressive principles -- and with a progressive president and Congress, they think they can succeed. "It's not a question of being bold or cautious; the question is: Are you assisting the political branches in promoting progressive constitutional values like liberty, equality and justice?" Balkin told me recently.

Not all the conference participants were supportive of this vision. Some argued that progressives should continue to move more cautiously. But several scholars expressed frustration with Clinton-era judicial minimalism. Balkin told me that minimalism was originally defended "as a way of reining in conservative judicial activism, preserving the judicial gains of recent years and promoting a sensible, middle-of-the-road, pragmatic politics." But the doctrine, he said, "no longer matches up with progressive aspirations: we have to come up with a positive vision for the future."

How might democratic constitutionalism work in practice? Consider the issue of gay marriage. Recently Republican senators have announced that they are eager to avoid confirming a justice who would vote to recognize a constitutional right to gay marriage. A democratic constitutionalist, however, would presumably refrain from protecting gay marriage until a majority of states had legalized it. William Eskridge, a leading scholar of same-sex marriage who participated in the Yale conference, told me recently that, in the near future, the main audience for constitutional arguments on behalf of gay marriage will be state judges, mostly in the Northeast and on the Pacific Coast, where citizens are supporting gay marriage in growing numbers. In Massachusetts, Connecticut and even Iowa, courts have taken the initiative and put gay marriage on the agenda, he points out, which has already prompted the legislatures in Massachusetts and Connecticut to respond.

Eskridge also argues, however, that the U.S. Supreme Court should avoid the debate until national public opinion has changed enough to ensure that a Supreme Court decision protecting gay marriage would not be overturned, as it now might be, by a constitutional amendment defining marriage as between a man and a woman. "Right now, same-sex marriage is recognized in fewer than 10 states, so this is not a good time for the U.S. Supreme Court to be jumping in either way -- it's premature," Eskridge told me. "By 2020, a majority of states will have recognized gay marriage or civil unions -- most of them by legislative rather than court decisions -- and at that point, or probably earlier, it will all be over and the Supreme Court will require Mississippi and Arkansas and a handful of others to follow the rest of the national consensus."

This argument suggests the method and appeal of democratic constitutionalism. While a Warren Court liberal might counsel the Supreme Court to leap ahead of public opinion and provide constitutional protections for gay marriage today, and while a minimalist might urge state and federal courts to wait until public opinion has shifted decisively, a democratic constitutionalist would embrace bold state court decisions but hold back at the federal level. In tandem with gay-marriage activists, in other words, state courts can play a role in building a national consensus for gay marriage that the U.S. Supreme Court may eventually recognize, protect and enshrine in constitutional terms.

The democratic constitutionalists also offer a different historical account than do minimalists or Warren Court liberals of how constitutional rights have actually been expanded in the past -- a history that parallels their own prescription for how constitutional rights ought to be expanded. In a forthcoming book, "The Will of the People," Barry Friedman, a law professor at New York University, tells the story of how the "give-and-take between the courts and the people" has shaped constitutional law from the founding fathers' era to the recent past and present.

Consider the example of women's equality. As late as 1961, Friedman notes, the Supreme Court held that the government was permitted to enforce traditional sex roles -- excluding women from jury service, for example, on the grounds that "woman is still regarded as the center of home and family life." But of course the country's mood was shifting. The new wave of feminism and the entry of women into the labor market were changing the popular understanding of women's equality. In 1972, Congress sent the Equal Rights Amendment to the states, and for a time ratification seemed likely. In 1973 a plurality of the Supreme Court argued that sex discrimination was entitled to the same rigorous constitutional scrutiny as race discrimination. But the E.R.A. was never ratified, and the Supreme Court didn't go as far as the plurality suggested it might. In 1976, the court ruled that sex discrimination deserved only slightly less constitutional scrutiny than racial discrimination -- a principle that even the E.R.A.'s opponents claimed to accept.

To a Scalia-style strict constructionist, the Supreme Court decisions forbidding sex discrimination were presumably mistakes that should be at most grudgingly tolerated, because they clashed with the original meaning of the Constitution. To a Clinton-era minimalist, the court was presumably wrong to leap ahead of popular understandings of women's rights and should have waited for the ratification of the E.R.A. To a Warren Court liberal, the court presumably should have held in the early '60s that race and sex discrimination were entitled to the same rigorous constitutional protection. But to a democratic constitutionalist, the court was right to be cautious and bold at the same time -- waiting until the E.R.A. was proposed but not waiting for its ratification, on the theory that the court's decisions could help push the country in a direction it was already moving and could help solidify the moral and legal cases for why sex discrimination was wrong.

For critics, the democratic constitutionalist's metaphor of "dialogue" is likely to seem vague and unsatisfying, a malleable abstraction that doesn't give a clear sense of which larger principles judges are supposed to honor, or when boldness is preferable to caution. Conservatives will certainly charge that the new liberals are guilty of the same sins as the old liberals: urging judges to disguise their policy preferences with ad hoc legal "principles." The democratic constitutionalists respond that, although their method can't be reduced to scientific precision, it's far more respectful of democratic debate -- far more willing to let contested issues be solved by the political branches than by judges -- than the leading liberal or conservative alternatives.

This summer, Obama will have a chance to appoint his first justice to the Supreme Court, and in the coming years, he may have the opportunity to appoint others. How likely might his choices be to embrace democratic constitutionalism? Many possible candidates can be seen as sympathetic to this emerging school of thought. His first nominee, Judge Sonia Sotomayor, as well as another judge often mentioned as a possible future candidate, Judge Diane Wood, have each publicly acknowledged that courts can shape progressive values by working as partners with legislatures and political activists. In a 2004 lecture at New York University, "Our 18th-Century Constitution in a 21st-Century World," Wood sounded very much like a democratic constitutionalist when she described the "interactive process" of constitutional change "that occurs through dialogue among the Supreme Court, the lower courts, legal scholars and society at large." Similarly, Sotomayor, whose past statements will now be heavily scrutinized, in a 1996 article that she co-wrote, based on a speech she herself gave at Suffolk University Law School in Boston, described "the law as a dynamic system," arguing approvingly that "change -- sometimes radical change -- can and does occur in a legal system that serves a society whose social policy itself changes."

Obama has said that he wants justices who understand that "justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives." Perhaps he was saying that rather than define our rights in an ivory tower, the most successful justices recognize that their decisions are part of a dialogue with real people -- starting at the grass-roots level. Or perhaps Obama's constitutional vision is less fully developed than I've suggested. It's clear, though, that Obama is trying to impose not a hard-and-fast manifesto for judicial liberalism but a sensibility and a work in progress that seek to synthesize previous legal thinking into something cohesive and new. If his nominees prove as ambitious as the president himself, they may well transform the shape of liberalism.

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the New York Times. He is at work on a biography of Louis Brandeis.

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