Bench Memos

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Pimping the Constitution


The Washington Post reports today that “some activists on the left” have a bad case of Scalia envy.  That is, they wish they had someone on the left wing of the Supreme Court, with Justice Scalia’s intellectual firepower and wit but the opposite views, who could go toe to toe with him and speak for their liberal vision of the Constitution.

There are several points of interest in this article.  First, is it not odd that the views of no conservatives were consulted in the writing of it?  This plainly affects the credibility of the article.  The gravamen of the piece is that “liberal legal activists” think they have “no true liberal” champion on the Court today–and to sustain this view it is taken as given that (in the words of the University of Chicago’s Geoffrey Stone) there are at most “moderate liberals” on the high bench at the moment.  This would come as a surprise to less ideologically unhinged observers of the judicial behavior of John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter.  I can think of just one or two issues where these four are less extreme than liberal hero William Brennan–on the per se unconstitutionality of the death penalty, for instance, which Brennan justly failed to make a respectable view despite years of bleating about it.  But Barnes and Merida ring up no conservative sources who might question the “moderate” designation being applied to Stevens et al.  One can hardly imagine their writing a story about conservative hopes for future Court appointments without calling a few liberals for their perspective on such hopes.

Another view that goes unchallenged in the article, thanks to its omission of conservative voices, is that the conservative justices on the Court today are “conservative activists” (in the reporters’ own phrase), rather than devotees of judicial restraint.  Now I am probably more inclined to criticize conservative judicial activism than most right-of-center observers of the Court–I see it more often, and say so, with respect to the Second, Tenth, and Eleventh Amendments, for instance–but even I would strongly argue that activism is the exception rather than the rule for the so-called “conservative” justices.  At their best, which is often, the quartet of Roberts, Scalia, Thomas, and Alito are the only voices we have on the Supreme Court pretty consistently enunciating a more modest view of judicial authority in American politics.  Even when they stray, they do their best to ground their more vigorous uses of judicial power in the original understanding of the Constitution’s text and history.  In short, on the “right wing” of the Court today there are no unself-conscious judicial activists, nor any proponents of the “living Constitution” nonsense that Justice Brennan pushed so hard, and that the Stevens wing of today’s Court still lives by (with the occasional assist from Justice Anthony Kennedy).  The natural home of judicial activism today is on the judicial left.  Its counterpart is not, properly speaking, a judicial “right wing” of comparable activists, but a small band of jurists who do their utmost–not always successfully–to keep their politics, or anyone else’s, out of their jurisprudence.

This was once thought to be the norm and ideal for constitutional law.  So what about the candid acknowledgment of all the liberals consulted for the story that their view of constitutional jurisprudence is frankly dictated by political ideology?  I suppose it might be said that grown-ups are past being shocked by such candor–in the same way one is no longer shocked at the sight of prostitutes on certain inner-city street corners–but the sight is still dismaying.  In this neighborhood of American liberalism, “activists” openly pine for a justice who “articulates a very clear idea of how [the Constitution] points to liberal and progressive outcomes.”  You’re deluding yourself if you think this entails fresh discoveries of what the Constitution itself, independently of ideological presuppositions, really means.  No, it entails the (further) enslavement of the Constitution to ideology, via a “heroic vision.”

If this sort of thing is understandable when it comes from people who have made a profession of politico-legal activism, what are we to make of the same kind of talk coming from leading legal academics?  Several are interviewed for the article, and the only one who does not openly avow a politicized view of the Constitution (as quoted here, anyway) is political scientist Christopher Eisgruber, provost of Princeton.  By contrast, law professors Geoffrey Stone (Chicago), Lani Guinier (Harvard), and Cass Sunstein (now at Harvard too) engage in enthusiastic pimping of the Constitution.  This ought to be–but in the rarefied circles of the legal professoriate’s highest altitudes it is not–an academic scandal.  As far as one can tell from this article, these teachers of future lawyers don’t give a hoot about the Constitution, except insofar as its vaguest phrases provide them with cover for the judicial imposition of policies that the historical Constitution does not command and that our republican institutions, answerable to voters, would reject.  Why should any constitutional scholar take such people seriously?  Why should any law student intent on actually learning something ever place himself under their tutelage?


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