What the left has in mind for the Supreme Court
Jeffrey Rosen, the liberal law professor, has written a long, fawning piece for the New York Times Magazine about Justice Stevens. Even though Rosen basically has produced a love letter, Ed Whelan shows that the "incoherence and idiosyncratic willfulness" that mark Stevens’s Supreme Court career are apparent enough to the discerning reader.
I can't match Ed's takedown, so I'll focus on the end of Rosen's piece in which he provides us with a glimpse of the left's vision for the Supreme Court. According to Rosen, a "natural place for a Democratic president to start looking for candidates would be to choose a justice in the model of Breyer, Ginsburg or Souter." But wait! It seems that "liberal interest groups are unlikely to be satisfied with a justice in their molds for the simple reason that none of them are [sic] considered liberal enough."
This leads Rosen to speculate as to whether the left would prefer a "philosopher king" in the mold of William Douglas or " a “progressive originalist” who could turn Scalia’s methodology against him." Unsatisfied with either alternative, Rosen then turns the floor over to liberal Yale law professosrs Robert Post and Reva Siegel so they can "identify a progressive vision for the next liberal justice that could mobilize Democratic voters as well as provide an effective counterweight to the four movement conservatives on the Roberts Court." Here's what they came up with:
First, in an age when the conservative justices are determined to cut off access to the courts in cases from civil rights to terrorism, the next liberal justice would interpret the Constitution to provide “access to the courts to enforce the rule of law” and would “understand that even the most powerful president is not a king.” Second, the justice would “interpret the Constitution in light of the entire history of the nation, and not just in light of the Constitution’s drafting history.” Third, the justice would “interpret the Constitution to create conditions of equal liberty to participate in the life of the nation” — in areas ranging from abortion and sex equality to affirmative action and campaign finance reform. Finally, instead of reading the Constitution in a cramped, legalistic fashion, the justice would “interpret the Constitution to create a partnership between courts and the popular branches,” encouraging Congress and the American people to debate and define constitutional values.
So there you have the left's jurisprudential agenda -- an end to standing rules; the Constitution to be interpreted based on whatever one gleans from "the entire history of the nation" (the Justice not as philosopher king but as historian king); the Constitution interpreted to mandate more income redistribution; and (to the extent I can find any content in the last point) some sort of merger between the court (which will have freed itself from the law) and our other branches of government.
Rosen concludes that only one of our current liberal Justice's meets this exacting test -- the mature incarnation of Justice Stevens. But Rosen fears that such a man or woman cannot be found -- after all, even Stevens didn't reach these heights until the normal retirement age. Yet my sense is that if you shake any tree in academia half a dozen suitable candidates will fall to the ground.
Meanwhile, someone should remember to ask Hillary Cllinton with specificity whether she shares the Post-Siegel vision of what a Supreme Court Justice should be.
