It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If, by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning -- "We must never forget that it is a constitution we are expounding" (McCulloch v. Maryland, 4 Wheat. 316, 407) -- "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Id., p. 415. When we are dealing with the words of the Constitution, said this Court in Missouri v. Holland, 252 U.S. 416, 433, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.

Nor is it helpful to attempt to draw a fine distinction between the intended meaning of the words of the Constitution  and their intended application. When we consider the contract clause and the decisions which have expounded it in harmony with the essential reserved power of the States to protect the security of their peoples, we find no warrant for the conclusion that the clause has been warped by these decisions from its proper significance, or that the founders of our Government would have interpreted the clause differently had they had occasion to assume that responsibility in the conditions of the later day. The vast body of law which has been developed was unknown to the fathers, but it is believed to have preserved the essential content and the spirit of the Constitution. With a growing recognition of public needs and the relation of individual right to public security, the court has sought to prevent the perversion of the clause through its use as an instrument to throttle the capacity of the States to protect their fundamental interests. This development is a growth from the seeds which the fathers planted….

               

However, as already noted, the book is not simply an abstract guide to constitutional interpretation.  It is also a deep meditation on the undoubted phenomena of significant changes in economic realities (such as the development of a national and now international marketplace) and, just as importantly, social values (or what Lessig calls “meanings” regarding, for example, the meaning of “equality” relative to various minorities at different times in our complex history) and the degree to which our overall constitutional order looks to federal judges, especially, to offer authoritative insight into the reality of these changes and then to modify existing constitutional doctrines accordingly.  Jack, especially, addresses this aspect of Lessig’s argument.  Suffice it to say that I agree that there is much that links Lessig’s argument with the great “legal process” tradition identified with Henry Hart and Albert Sacks, especially inasmuch as that tradition relied on a process of thoughtful deliberation among legal elites to produce a consensus that could and would be accepted by society in general.  

One might think in this context of the plaintive plurality opinion in the Casey case on abortion, in which the three justices who signed it—Kennedy, Souter, and O’Connor—called on the country to accept the Court’s opinion in Roe (as in fact modified in Casey) as a definitive resolution.  (This is obviously in line with the earlier proclamation by the Court in Cooper v. Aaron, only in 1958, that it was the “ultimate interpreter” of the Constitution, which by definition required the acquiescence of all other purported such interpreters.)  One might, incidentally, place Mccluskey's own view of the Court within an intellectual framework where the Court was expected to be able to "read," as it were, public opinion or elite preferences and discern what political scientists would call "single-peaked preferences" that basically established the guidelines within which Courts might be free to act.  They could, for example, move a half-standard-deviation away from the peak, even as moving further, whether to push the zeitgeist along much faster than it was in fact moving or, contrarily, to try to stem what was becoming the clear direction of American constitutional development outside the courts.

But what is necessary for this vision of the Court “to work,” as an empirical matter?  The answer, Lessig seems to suggest, is widespread perception by the public that the judges are trained (and wise?) professionals whose judgments can generally be trusted, even if, as with all humans, they will on occasion make mistakes.  What this “translates” into, so to speak, is general acceptance of “the essentially nonpartisan character” of the Court, which he appears to believe has been more true than not “of its past” (p. 458).  (Obviously, many historians might dispute this description.)  What this requires, perhaps, is a linked reality of “[t]he justices [as] anonymous, or relatively so.  They do their work carefully and personally” (id.)  He well recognizes, even if he does not elaborate, that this description is very far from our present reality.  Almost no one believes that the Court is close to “nonpartisan.”  Any possibly remaining doubt on this point was surely eliminated by Mitch McConnell’s successful theft of a Supreme Court seat for the Republican Party (which also, of course, required eliminating the filibuster for Supreme Court nominations that removes any ability of the minority party to play a genuine role in confirming justices).  Nor do this recent decisions by five-justice conservative Republicans majorities in the partisan-gerrymandering and census cases offer the slightest reasons to embrace a "non-partisan" description of the law simply working itself pure, as suggested by the Legal Process tradition.
 
Donald Trump’s most brilliant political move in 2016 was to disclose the “list” of his prospective appointees, which was prepared, of course, by the hyper-partisan Leonard Leo in behalf of the Federalist Society and Heritage Foundation.  I anticipate that Democratic candidates, who have a remarkable willingness simply to ignore the judiciary in their campaigns (and, in some senses, even while holding office, as with President Obama), will be pressed to reveal their own “lists” regarding future appointments to the Court and, all importantly, whether they will support an expansion of the federal judiciary in order to counter the seizure of power by McConnell and his minions in the senate.  Perhaps Joe Biden will refuse, declaring that he will use his proclivity for bi-partisanship to work well with Republicans when appointing judges.  Should that be the case, though, I suspect that he will be rightly castigated for simply misunderstanding the modern Republican Party and the consequent necessity for Democrats to pay as much attention to judicial appointments as do Republicans. There is no evidence, for example, that Biden was able to dissuade Mitch McConnell even for ten seconds from his disdain from giving Merrick Gerland even the courtesy of a hearing.

Moreover, it is a reality that modern justices are scarcely “anonymous.”  I was astonished several  years ago to be told by a member of the German constitutional court that there had been no biographies of any members of that extremely important and interesting body.  They serve for ten years and then return to their ordinary lives, often as distinguished academics like Dieter Grimm.  Here, of course, we now have what can only be described as a cult surrounding Ruth Bader Ginsburg,.  She has been the subject of several biographies, a documentary, and a film focusing on her years at the Harvard Law School and then as a lawyer helping to construct the scaffolding of arguments, for the American Civil Liberties Union, that helped to persuade an all-male and decidedly patriarchal Supreme Court—William J. Brennan, for example, had to be dragged kicking and screaming to hire a female law clerk—to interpret the Fourteenth Amendment and, just as importantly, the Civil Rights Act of 1964 in ways that benefitted women (though part of Ginsburg’s brilliance was to frame several of these cases around male plaintiffs who could legitimately complain about gender discrimination).  But Antonin Scalia spent most of his career also creating a far more influential cult of personality by devoting his considerable energies to encouraging the formation of the Federalist Society and the creation of a genuine institutional and social home for legal conservatives who had, with some reason, felt isolated at many of the country’s leading law schools.  Louis Brownlow wrote many years ago that an effective federal bureaucracy depended on a “passion for anonymity” on the part of selfless civil servants. One might suggest that the only recent justice with such a “passion” was David Souter, who, not at all coincidentally, left the Court after serving what today we might describe as a “mere” twenty years when he was “only” 70.

Moreover, it Is unclear to what extent we can describe the justices as doing their work “personally” and, perhaps, even “carefully.”  It is hard to believe that we as a society really benefit from each Justice’s having four clerks.  Today’s limited docket of the Supreme Court means that each justice will have the task of preparing approximately eight majority opinions during the Term, as well as however many concurrences or dissents he or she might wish to issue.  Obviously justices have many other tasks besides considering cases and writing opinions, but perhaps they should spend less time, for example, judging moot court competitions at law schools (where they are inevitably fawned over by students—and their teachers—who treat Supreme Court justices as celebrities) and, instead, writing their own opinions.  At least as important in understanding modern legal culture,, though, is the willingness of justices themselves, let alone outside commentators, to castigate their colleagues in a way that is designed to deprive their opinions of any genuine respect. 

One of Justice Scalia’s primary activities on the Court was to engage in what can only be called “trash talk” that ridiculed his colleagues.  As he got older and more ornery, this became ever more prevalent.  So in Obergefell he simply accused his five colleagues in the majority as not “behaving like judges.”  If one takes this seriously, they should be impeached.  Chief Justice Roberts was no better, concluding his own Obergefell dissent by writing that the majority’s decision had “nothing to do with the Constitution.”  This is a bare-faced lie, at least inasmuch as one can relatively easy link the decision in that case with the earlier decision of the Court in Loving v Virginia striking down that state’s ban on inter-racial marriage.  I do not deny that one can distinguish the two or that a reasonable person could reject the majority’s decision.  Writing for the Sixth Circuit, Judge Jeffrey Sutton wrote a powerful opinion, based on classic imperatives of "judicial restraint" upholding Ohio’s ban on same-sex marriage.  The fact that I disagreed with it does not warrant my insulting him in the ways that Scalia (for whom Sutton clerked) regularly did his own colleagues.

Gerard Magliocca writes that “[w]hen lawyers look at the Supreme Court opinion, they are usually able to evaluate the quality of the work.  There is a consensus about the relevant source and methods of interpretation, most of the time.  To the extent that this is not the case, there is an internal logic to a method that lets us test the soundness of the conclusion.”  I find it hard to recognize this as a description of our current reality.  Legal academics, to take the “interpretive community” I am most familiar with, seem increasingly non-consensual about “relevant source[s] and methods of interpretation,” and we are certainly capable of exhibiting acrimony with regard to opinions, whether by justices or our colleagues, that we find literally incredible. The key word here is "consensus."  As already suggested, Mccluskey, writing in the 1950s, was certainly influenced by the "consensus school" of American history.  That approach began coming under relentless attack in the 1960s--McCloskey died in 1969--and is in shambles today.  Consequently, any theories of judicial review, and the nature of public and professional response to decisions of the Court, whatever their ostensible basis, must take into account the fact that, as Daniel Rodgers titled his 2003 book, we live in an "Age of Fracture."  (This is also a powerful implicit theme of Ken Kersch's vital book on conservative constitutionalism.)

Lessig emphasizes throughout his book the importance of “charity in interpretation,” by which we assume the best of our adversaries instead of denouncing them as unprincipled or incompetent.  There is obviously much that is attractive in this emphasis.  A society organized around what has been called a “hermeneutics of suspicion” cannot long endure.  Whether or not Auden was correct in saying “we must love one another or die,” it is surely the case, as Steve Griffin has emphasized in his own important work, that “we must trust one another” if we wish to maintain a functioning society.  So it is no small matter to reject Lessig’s vision of a world of “fidelity and constraint.”  The alternative may be not only a much greater embrace of Legal Realism than Lessig is comfortable with, but also, and more ominously, a further descent into polarization, mistrust, and dysfunctionality.