David J. Barron, Part 2: ‘Progressive Constitutionalism’

This is the second in my series of posts about the judicial philosophy of David J. Barron, President Obama’s judicial nominee to the First Circuit Court of Appeals. As I noted in Part 1, Barron has left us ample information about his judicial philosophy through his academic publications. If confirmed, Barron would seek to use the federal judiciary as a weapon in pursuit of what he calls “progressive constitutionalism.”

In a 2006 piece for the liberal Harvard Law and Policy Review, Barron laid out his vision of “progressive constitutionalism” in an article entitled “What’s Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present.” Though it’s now long-gone from the HLPR website, you can still read it yourself here. Progressive constitutionalism, so far as I can make out, appears to be a less modest version of what earlier generations of academics called “living constitutionalism.” Although the “progressive” variant uses similar language to living constitutionalism, describing the Constitution as “a dynamic document” and caricaturing originalism as a “frozen” Constitution, it is more strident, less deferential to democratic processes, and more explicit about its willingness to use the Constitution instrumentally.

The article contrasts two strains of left-wing academic thinking about the constitution. One of these strains, according to Barron, focuses on using democratic mechanisms to enact desirable laws and take executive action as a means of “giving life” to the Constitution. In Barron’s view, this strain is “anti-Court” because it seeks to use Congress and the Presidency to advance left-wing policy positions while urging the courts to “get out of the way.” The other strain, which Barron clearly favors, seeks to “take the substantive claims of conservative constitutionalism seriously and to challenge them in ways that will not thereby justify broad judicial deference to political actors.” In other words, Barron wants judges to counter what he describes as “conservative constitutionalism” and “conservative judicial activism” with a vision of the Constitution that does not require courts to defer to democratically-selected policymakers.

One of the ways that courts can do this, Barron suggests, is by pre-empting public opinion. For instance, he lauds the Massachusetts Supreme Judicial Court:

Such protections [same-sex civil unions and adoption rights], rooted in state constitutional interpretation, have generally held up against political efforts to overturn them, but there is little doubt that state legislatures would not have responded as quickly without judicial intervention. It was courts acting in advance of political will that made the difference.  [emphasis added]

In case there were any doubt that Barron thinks courts should have primacy, he hails state supreme courts (such as New Jersey’s) for overriding state legislatures:

State supreme courts, not state legislatures, have also led the revolution in school financing equality, though judicial actions have catalyzed political responses. Thus, the progressive Anti-Court critique that targets so vigorously the federal Supreme Court’s activism only feeds the conservative mantra that courts in general are overstepping their bounds in issuing rights-protecting decisions. Yet progressive constitutionalists enamored of the Anti-Court rhetoric rarely take account of its potential downstream effects on state-court interpretation and legitimacy.

The last sentence of that quote is chilling: Barron is worried that by asking federal courts to behave in a “conservative” way, state courts might become bashful about “leading the revolution” in progressive policy. In Barron’s vision, judges rule and must be free from any influences that might sway them from their heady task.

Barron also makes clear that the desired “progressive constitutionalism” is not derived from legal texts such as the Constitution, its amendments, or the laws created by Congress. No, this “progressive constitutionalism” is something to be engineered for political ends. He writes:

I want to emphasize, once again, that I do not mean to suggest that the reason the Anti-Court progressive constitutionalists — including Post and Siegel in this piece — wish to shift the forum from courts to legislatures or popular decision making is simply in order to generate more progressive outcomes. Sometimes, of course, this seems to be the point the Anti-Courtists wish to make. But that is not always clear. They may wish only (or primarily) to generate popular constitutional control. If that is the case, however, then it becomes harder to see their position as being one that sounds in progressive constitutionalism, unless progressive constitutionalism is to be equated with a defense of popular constitutionalism independent of the substantive outcomes it would generate. [emphasis added]

In other words, what makes a “progressive constitutionalism” important is that it achieve progressive “outcomes.” One might consider Barron’s ideal federal judge to be a life-tenured philosopher-king, handing down “substantive outcomes” from Mount Olympus.

Barron also thinks that a constitutional theory should be chosen based on what is popular, not whether it is true. He writes:

Superficially, of course, it may seem that the Anti-Court style of critique is deadly accurate, if only because the rhetoric that it relies upon in critiquing contemporary conservative constitutionalism seems to have real public appeal, something that cannot be said for some other progressive constitutional rhetorical traditions. But I am doubtful that this Anti-Court rhetoric will remain powerful over time. There is a sense, at present, that turnabout is fair play.

Read that again: the acceptability of the opposing view is based on whether it “will remain powerful over time,” not whether it is “accurate.” Again, chilling.

If Barron’s view of the courts seems radical to you, you’re not alone. Two of the left-wing academics discussed in Barron’s article, Robert Post and Reva Siegel, called Barron out for being a judicial supremacist:

These matters need to be carefully and contextually studied. Insisting on separating law from politics in order to preserve the purity of the law’s substantive commitments will do no good if it causes us to ignore the sources of the law’s actual legitimacy. Only in legal process textbooks is law about contentious matters wholly independent of politics. This is not simply a regrettable reality; it is a democratic good. Democracies require the rule of law — as well the kind of dialogue among courts, the political branches, and the voting public that makes the rule of law responsive to the community. No progressive would want to live in a state where the authority of “We the People” refers only to the professional opinion of judges.

Barron responded that Post and Siegel failed to see that the biggest danger to the progressive agenda is not posed by judicial supremacy, but rather by popular opinion.

These excerpts make clear that Barron favors using the federal courts as a platform to advance a “progressive constitutionalism” that will achieve the desired policy results. His view doesn’t really deserve to be called “constitutionalism” at all, since it is derived from philosophical premises and political commitments that are entirely alien to the Constitution. In this respect, Barron’s judicial philosophy is not only radical, but inconsistent with the entire American legal tradition.

David J. Barron: Part 1

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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