The legal left is taking the summer to think. In the next few weeks, the American Constitution Society and the YearlyKos Convention will host panels on the Supreme Court's future and what the left can do about it. The short answer, of course, is cry. And then try to win the next election. But there is also a renewed effort to offer an alternative to the conservative vision that the Roberts Court has begun to fulfill—and also an alternative to the old quasi-liberal idea that it is judicial restraint and unity that will deliver the court from the right.
This is a long-standing project in the academy, and one that even Justice Stephen Breyer has weighed in on, in his book Active Liberty. In the wake of this year's 5-4 conservative ascendance, however, fighting back—even if it won't mean winning cases in the short-term—has an extra sense of urgency. And the discussion is especially welcome, because it's time for the left to rethink the reliance on restraint and unity. For years, some left-leaning legal theorists have argued that constitutional law is best served if judges hesitate before striking down laws or imposing their own bold ideas on the country, and instead stick to narrow, fact-bound rulings that are more likely to achieve consensus. It works well enough in some cases and areas of law. But advocating for this approach has done little to stop the court and the law from moving to the right, and that's not likely to change now.
There are, however, other promising signs of life on the left—signs that its legal scholars are looking for other ways to counter the court's rightward intellectual underpinnings. This essay, just posted at the New Republic, picks up on arguments made by Akhil Amar and Jack Balkin that the left should wrestle fealty to the Constitution's original intent from the right and reclaim it for the left. Yale law professors Robert Post and Reva Siegel's new paper beats back the claim that the court's totemic liberal decisions, Brown v. Board of Education and Roe v. Wade, did more harm than good. And University of Chicago law professor Cass Sunstein has an upcoming essay in the American Prospect in which he points out how far to the right the composition of the current court has tilted when compared with the court of 1980—itself hardly the Warren Court of the previous decades.
The case for restraint and unity, meanwhile, is a harder one to rally around these days. The hope that Roberts would be a practitioner of the theory was the basis for the praise some liberals heaped on him when he was nominated. But Roberts' record this term suggests otherwise. Maybe the problem is that the theory requires judges to rein themselves in rather than maximize their own power, which, once you're a justice, is hard to resist. In any case, Roberts hasn't.
Yet some on the left are still sticking by him, arguing that it's "premature" to give up on the chief justice as a paragon of restraint and the captain of a united Team Supreme Court. Just give Roberts time, and he'll come through. That's the line George Washington University law professor Jeffrey Rosen took last week in his latest piece for the New Republic. Rosen took issue with my demand that he and other past Roberts supporters "recant." (And in response, Matthew Yglesias stuck up for my argument on the Atlantic's blog better than I could have done myself.) But what's more significant is Rosen's rationale for why Roberts didn't achieve unity this term, and why it would be good for the country if he did. Rosen puts the blame for division on the shoulders of Justice Kennedy. Because Kennedy is less pragmatic than former Justice Sandra Day O'Connor, Rosen writes, he "refused to embrace Roberts' invitation to converge around narrow, unanimous opinions."