an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Cass Sunstein notes that today's Supreme Court lacks visionaries among its liberals; the real visionaries are Justices Scalia and Thomas on the right. He contrasts this with liberal visionaries in the 20th century, who (in his view) include Holmes, Brandeis, Black, Douglas, Warren, Brennan and Marshall.
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.
Justices do not become "visionaries" in the eyes of history in isolation from larger political and social events. We tend to regard Justices as visionaries if (1) they have strong, programmatic views about the meaning of the Constitution and (2) they are allied with or become useful to powerful and ascendant social movements of their day. (Holmes, for example, was useful to progressive social movements and to New Dealers even though his politics were not particularly progressive). Put another way, a "visionary" is a social construction produced by a host of different and overlapping effects. Justices become thought of as visionaries in hindsight, in part from their temperament and philosophy, in part from the circumstances that lead to their appointments and in part from the way political and social movements develop following their appointment. (For my own take on how history tends to view Justices, see my 2003 essay, The Use that the Future Makes of the Past.)
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.
I'm not sure quite what to make of the term, "visionary", as employed by Professor Sunstein. To some extent, especially where he names the dissenting duos in a decade of the 20th century, he seems to be speaking of prophetic vision, of dissenters seeing ahead of their time ("Brennan and Marshall in the 1970s, Douglas and Black in the 1950s, and Brandeis and Holmes in the first decades of the twentieth century").
Brennan and Marshall in the 1970s seem only to have been able to marshal their forces on the Court for a holding action in the 1980s and early 1990s, but the other two pairs seems to have been able to win fiveman majorities for at least some parts of their programs. Is the suggestion then that Scalia and Thomas will prove prophetic and thus "visionary" if the Court's membership proves more amenable to them?
It seems clear that Sunstein's "visionaries" are at least somewhat radical (some more than others, on either left or right, or in terms of judicial method - certainly Holmes, Brandeis, Douglas, Black, and Warren fought their duels in a rather different style than did their forebears). Scalia is in some sense a radical in terms of his preferred interpretive method, but Thomas is beyond doubt the most radical of all. (Scalia wouldn't destroy the administrative state).
Lastly, when did Frankfurter become a great Justice? (when no one was looking?)