The Vision Thing

JB

Of course these claims raise many questions. How shall we classify the Court's "Four Horsemen" of the early twentieth century (Justices James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler), who voted to strike down maximum-hour and minimum-wage laws? In a democracy, isn't it best to have justices who are careful and excellent, rather than visionary?

The answers to these questions are not obvious. But one thing is entirely clear: The absence of anything like a heroic vision on the Court's left, and the existence of such a vision on the Court's right, is having a major and largely unnoticed impact on public understanding of both the Court and the Constitution.

Liberals have not been part of a politically dominant and ascendant social movement for a long time; they have been fighting a defensive battle for about thirty years. It is therefore no wonder that newer liberal Justices (appointed by Bill Clinton, the triangulator-in-chief) were unlikely to be what Sunstein calls "visionaries." Conversely, the political and social movements of the right have been ascendant for the past thirty years. It is far more likely that visionaries would be found among them. Not all of them would be visionaries, of course. During the ascendancy of liberal politics during the New Deal, only a few of Roosevelt's appointments (Black and Douglas) turned out to be visionaries in Sunstein's sense, although all were committed New Dealers; and there was only one (Thurgood Marshall) among Kennedy's and Johnson's appointments in the second wave of liberal social movements, even though all of them (including Byron White) were New Frontier liberals and favored the claims of the civil rights movement.

Earl Warren and William Brennan were Eisenhower appointees who allied themselves with liberal social movements and/or were useful to those movements. It is important to remember that the liberalism of the 1950's and 1960's was bi-partisan, including both liberal Republicans and liberal Democrats; the Democrats were actually two parties, a liberal wing and a conservative Dixiecrat wing. The great civil rights legislation of the 1960's was passed by a coalition of liberals and moderates from both parties.

According to this logic, the "Four Horsemen" of the 1930's were not visionaries even though some of them had strong visions. That is because they were fighting a defensive war against a rising social and political movement which reelected Franklin Roosevelt and the Democrats repeatedly. Eventually Roosevelt replaced them with New Dealers, producing the constitutional revolution that we associate with 1937 but which actually takes place a bit later, after the Democrats' partisan entrenchment did its work.

If a powerful new social movement arises on the left (which may happen if the Republican Party implodes due to the Iraq War), Sunstein need not worry. There will be future liberal Presidents, and they will appoint new liberal Justices who are visionaries in anyone's sense of the word. But if one thinks this is a good thing (and some do not!) the most important way to achieve it will be for liberals to stop playing defense, go on the political offensive, and convince their fellow Americans that they have a vibrant and healthy political vision for the future. If they can do that, and if they can sustain a powerful new social movement over the next few decades, there will probably be plenty of visionary judges on the left to choose from.