On Courts

One of the more interesting dialogues at the American Constitutional Society's annual meeting over the weekend occurred when Kathleen Sullivan paid homage to courts and Mark Tushnet responded by pointing out that courts are good only when they are on your side. Debate then followed over whether courts are good.

A more political science perspective might suggest that courts are simply there whether you like them or not. Judicial review is not likely to run away, so all political coalitions seek to use courts both to advance agendas while they are in office and to preserve those agendas should rival politicians gain power. As Thomas Keck and numerous others point out (William Lasser has a first rate book on this subject), judicial restraint is rarely the dominant theme for long. Coalitions that come to power preaching opposition to courts, be they New Deal Democrats or Reagan Republicans, soon find that courts have much work to do (and I should add, each with some degree of sincerity insists that such activism is justified because it is in the constitution, as opposed to the other guys who are merely legislating from thebench).

Such a perspective suggest a rather different take on the Roberts nomination. I presume that Roberts will advance a Republican constitutional vision if confirmed. But there are many Republican constitutional visions. Which one. More important, he is likely to be on the bench for a long time. At some point in time a different political regime is likely to arise. Will Roberts imitate the four horsemen of 1937 and fight that regime tooth and nail or, more in the manner of a Justice Grier (see Civil War and Reconstruction) will he limit his fights to the margins. As progressive constitutionalists formulate our shadow constitution, we need to be aware that a judiciary packed with certain types of conservatives will not only overrule liberal triumphs of the pst, but place severe barriers limiting liberal triumphs of the future.