The following article by HLS Professor Noah Feldman, “Imagining a Liberal Court,” appeared in the June 21, 2010, edition of the New York Times Magazine. A contributing writer to the New York Times, Feldman recently wrote a book entitled “Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices,” which will be published in the fall.

Imagining a Liberal Court

by Noah Feldman
l. THE CRISIS
Noah Feldman

Credit: Phil Farnsworth Noah Feldman

After decades of stagnation, progressive constitutional thought is reaching a crisis point. Consider that the two great “liberal” justices who retired from the Supreme Court most recently — David Souter in the spring of 2009 and John Paul Stevens a year later — were conservatives. Not only were both appointed by Republican presidents, but both also subscribed loosely to the adage “If it ain’t broke, don’t fix it.” With a handful of exceptions, neither favored identifying new constitutional rights where none existed before. Their status as liberals came from the fact that, as the court on which they served tilted to the right, they held their ground as moderate Republicans, consistently voting to sustain the constitutional rights that were discovered by the Supreme Court before they were on it. To be sure, without their votes, the liberal constitutional legacy of the period stretching roughly from Brown v. Board of Education in 1954 to Roe v. Wade in 1973 would have been reversed. But Souter and Stevens were not independent forces for progressive change in American life.

To a great extent, the crisis of liberal thought on the Supreme Court is a result of liberalism’s success. From the time that Franklin Roosevelt’s appointees came to form a majority on the Supreme Court until the appointees of Richard Nixon and Ronald Reagan came to predominate, liberal constitutional thinking had two major objectives — both of which it largely achieved. First, it sought to give bite to the 14th Amendment’s promise to extend to all persons the equal protection of laws. The Brown decision voiding racial segregation in schools as unconstitutional was the most famous piece of the court’s push for equality. The same ideal was also encompassed in holdings that demanded “one person, one vote” and — more controversially — that upheld affirmative action as consistent with the values of the Constitution.

Second, the liberal Supreme Court interpreted the constitutional promise of liberty as a guarantee of individual autonomy — the freedom to make important life decisions without government interference, especially in the realms of sex and reproduction. Roe v. Wade was the culmination of this movement toward personal liberty. The court took the rubric of a right to privacy that it found in what it called the “penumbras, formed by emanations” of various constitutional amendments and extended the right from marital contraception to abortion. Although the court has never embraced a right to die, it has in recent years, through Justice Anthony Kennedy, spoken of “the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”

Since Roe, the majority of the most-pitched battles in the Supreme Court have concerned whether the liberal visions of equality and liberty should be reined in. Much of the time, as with the court’s compromise rulings on affirmative action and partial-birth abortion, the result has been uneasy deadlock and indecisive squabbling. The most prominent exception is the issue of gay rights, which the court came late to embracing in Lawrence v. Texas in 2003 and which — through the same-sex marriage question — remains in the court’s future. It is not too much to say that its resolution (one way or the other) will be the last act of the liberal constitutional revolution.

No new progressive constitutional vision, meanwhile, has emerged from within the court. The only two Democratic appointments in the 42 years between Thurgood Marshall in 1967 and Sonia Sotomayor in 2009, Justices Ruth Bader Ginsburg and Stephen Breyer, reflect this reality. Ginsburg’s distinguished career as a lawyer in the women’s rights movement before she went on the bench embodied the drive for equality; but as a justice, she has striven, mostly successfully, to preserve what she won as a Supreme Court advocate. Breyer’s own pre-judicial reputation was made as part of a bipartisan, technocratic movement for cautious deregulation; on the court, he has been centrist and pragmatic, voting to preserve the liberal legacy while also showing a willingness to compromise on a case-by-case basis. Neither Sotomayor nor the current nominee to the court, Elena Kagan, has articulated a new progressive constitutional vision, either.

Why does the absence of this vision constitute a crisis for liberals? The answer is that new and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality. These problems cluster around the current economic situation, which has revealed the extraordinary power of capital markets and business corporations in shaping the structure and actions of our government. The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.

More alarming is the fact that, over the past couple of decades, evident gains from deregulation have made many lawyers — progressive and conservative alike — too complacent about deferring to the markets on which our economy depends. That markets work well in so many contexts has strengthened the traditional conservative argument about the constitutional duty to respect private economic transactions — even in the minds of many liberals. Civil libertarian commitments, meanwhile, have become increasingly absolutist, leading some liberals to favor extending basic rights to corporations, not just to individuals. The American Civil Liberties Union, for example, has long urged the Supreme Court to treat corporations just like individuals when it comes to political speech.

To address these challenges, progressive constitutional thought must discover (or rediscover) a core set of beliefs about the right relationship between government, the individual and the powerful corporate entities that operate under the umbrella of the market. Reregulation, embraced by the Obama administration to address a range of serious economic and environmental dangers, demands its own set of constitutional explorations and explanations. A truly progressive constitutional project needs to go beyond simply upholding regulations challenged in court. It demands that the Supreme Court and other bodies acknowledge the government’s responsibility to protect our democracy from the harmful side effects of all-powerful markets.

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