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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The first half of Jeff Toobin's latest article in the New Yorker describes what he calls Obama's attempt at a "post-partisan" approach to courts. The second half discusses why liberal politicians and legal academics are increasingly less focused on courts and judicial review than the right. It discusses Reva Siegel's and my book The Constitution in 2020, the idea of democratic constitutionalism, and the work of several of the contributions in that volume. Toobin notes that a focus on democratic constitutionalism shifts the focus away from courts and toward legislative issues:
Notwithstanding Obama’s protestations, his brand of pragmatism is an ideology, and his reconsideration of what it means to be a judicial liberal has come at the same time as some in the legal academy are examining the same questions. One prominent effort in this vein, which began before Obama even became a candidate for President, has led to a complementary approach to that of the new President.
“The liberal-activist model of the nineteen-sixties and nineteen-seventies said that the Supreme Court would declare that there are rights, and then order the political branches to enforce them,” Jack Balkin, a professor at Yale Law School, told me. That approach seemed both unattainable and undesirable to Balkin and Reva Siegel, a colleague at Yale, so they decided to try to rethink the liberal legal agenda. They were inspired in part by a series of memos and speeches that Edwin Meese III, as Ronald Reagan’s attorney general in the eighties, had commissioned to articulate a conservative vision for the courts; over the years, the ideas in several of these memos have found their way into Supreme Court precedent. It was Meese, for instance, who first called Washington’s attention to the view that the Constitution should be interpreted according to the “original intent” of the Framers, an approach that Antonin Scalia and Clarence Thomas have brought to the Supreme Court.
The main result of Balkin and Siegel’s collaboration is a book, “The Constitution in 2020,” published earlier this year, which includes contributions from more than a score of leading progressive law professors—some of whom now work in the Obama Administration. At the core of Balkin and Siegel’s concept is the notion that “judges don’t own the Constitution.” By that, they mean that the Constitution, at any given point in history, is shaped by a broad array of forces, including elected officials, activists, and voters. “The Court decided Brown in 1954, but that didn’t settle what ‘equal protection of the laws’ meant,” Balkin said. “Politicians and the civil-rights movement shifted the meaning. Martin Luther King changed it. The Civil Rights Act changed it. The organized right changed the meaning when it reacted to busing. The history of race relations in this country is organized around each side claiming the mantle of Brown. But no one ever has the last word.”
As proof of this hypothesis, the authors point to the history of the Second Amendment and gun control. The first clause of the amendment refers to the need for “a well regulated Militia” and the second states that “the right of the people to keep and bear Arms, shall not be infringed.” For many decades, into the nineteen-eighties, it was widely agreed among judges and scholars that the right to bear arms belonged only to militias, and thus the Second Amendment imposed no limits on the ability of states and localities to enact gun-control laws. Warren E. Burger, the former Chief Justice (and no liberal), said that any other view of the law was a “fraud,” and Robert Bork, the conservative hero, said much the same thing. But Meese and his allies in the National Rifle Association were indefatigable in pushing an opposing interpretation, and their position became widely adopted, first in the Republican Party and then among many Democrats. Finally, in 2008, the Supreme Court, in an opinion written by Antonin Scalia (who was appointed while Meese was attorney general), struck down a District of Columbia gun-control law as a violation of the Second Amendment. A fringe position—a “fraud”—two decades earlier had become the law of the land. To Balkin, this is an entirely appropriate example of what he, Siegel, and Robert Post, the dean of Yale Law School, call Democratic Constitutionalism. “Conservatives convinced other people that their vision of the Constitution was a better one, they won elections, they appointed their people to the Court,” Balkin said. “This is not lawlessness. This is how the system works.”
In a way, Democratic Constitutionalism goes back to the origin of the activism-vs.-restraint debate. . . . In [the New Deal] liberals believed in restraint, and conservatives were the activists. (That flipped in the Warren era.) Notably, when Sotomayor was asked her favorite Supreme Court Justice, she named Benjamin Cardozo, who was a leader in fighting the conservative activism of the thirties on the Court.
“What you’ll get with Obama is basically Carolene Products—‘Leave me alone on economic issues and protect me on civil rights,’ ” Richard Epstein, the conservative legal scholar who was interim dean of the Chicago Law School when Obama taught there, said. [In] Carolene Products . . . The Justices gave the elected branches a more or less free hand on economic issues but exercised greater scrutiny of measures that affected minorities. “Obama has nothing much he wants from the courts,” Epstein told me. “He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.”
As David Strauss observed, “Fighting over the courts is not going to be a high-priority issue for Obama or the Democratic coalition. The Republican coalition cares a lot more about it at this point, because they want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats. The Democratic agenda is more democratically focussed on legislation.”
In recent years, thirties-style conservative judicial activism, targeting federal legislation, has been returning to the Court. As Cass Sunstein, a former professor at Harvard Law School, writes in the “2020” collection, “Increasingly, conservatives have been drawn to ‘movement judges’—judges with no interest in judicial restraint, with a willingness to rule broadly and a demonstrated willingness to strike down the acts of Congress and state governments. Movement judges have an agenda, which, as it happens, overlaps a great deal with the extreme wing of the Republican Party.” Sunstein notes that the Rehnquist Court struck down more than three dozen federal enactments between 1995 and 2004—“a record of aggressiveness against the national legislature that is unequaled in the nation’s history.” . . .
An Obama Court would almost certainly defer more to congressional and other legislative judgments. “You start with the premise that the political branches are the first line of defense of constitutional rights,” Balkin said. “If you think that health care is a very important right that people should enjoy, you think that the best way to enforce it is for Congress to pass a law and the President to sign it. This is a very different model from the late sixties.” Obama’s ambitious legislative agenda, combined with his stated devotion to judicial restraint, signals an approach in synch with this ideology.