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."
I'm not sure what invitation he has in mind. In most of the court's major rulings, Roberts drove pretty hard to Kennedy's right, including in the school race case, writing opinions that didn't beckon to the court's supposed swing man. In other cases, of course, like the decision to uphold the federal "partial-birth" abortion law, the two were in sync. In 13 of the court's 19 cases that split 5-4 along ideological lines, Kennedy and Roberts were together on the winning side, as Linda Greenhouse at the New York Times has pointed out. (Four of the remaining six involved Texas death-penalty law.) It's true that in the ruling that struck down federal campaign-finance reform, Kennedy wanted to go further than Roberts. But that's one example.
Let's say, though, that next term, Roberts is even more successful in wooing Kennedy than he was this term, which seems entirely plausible. What kind of "unity" would that get us? The answer is in Sunstein's new essay (here's an early version). He argues that 1) today's court has no William Brennan or Thurgood Marshall (Ruth Bader Ginsburg is not that liberal), whereas the 1980 court had no Antonin Scalia or Clarence Thomas; 2) three of the court's supposed "liberals"—Breyer, David Souter, and John Paul Stevens—are really moderates, akin to the old Stevens-Lewis Powell-Byron White trio; and 3) the trade-off in the center of Harry Blackmun for Anthony Kennedy is a loser for the left, too. Sunstein still believes in restraint (he calls his version of it "minimalism"). But while he doesn't think the likes of Brennan and Marshall should run the show, he also now says that "something has gone badly wrong if the Court has a strong right-wing without any real left." And it's even worse that the court's moderates are being cast as left-wingers, thus belying the court's overall conservative creep.
Sunstein's framework shows that if Kennedy joins with Roberts more often to "unify" the Roberts court, the court only will move farther to the right. Maybe Kennedy would temper the reasoning of some conservative victories. But they'd still be just that—wins for the court's conservative bloc, which is far more conservative than it was a quarter-century ago. Is that really what the left should be hoping for?
I hope Rosen is right and I've judged the Roberts court prematurely. I hope the court becomes so amicable and accommodating that Breyer and Souter and Stevens and Ruth Bader Ginsburg can sign on to majority opinions regularly and without reservation. Peace and love for everyone! But Breyer, Ginsburg, Souter, and Stevens—the moderates who actually work with John Roberts—don't seem sanguine about that possibility. These justices joined each other's often-angry dissents this term more than is customary, to give them more force. They read those dissents from the bench, a gesture that signifies intense disapproval, if not despair. John Roberts, his colleagues seem to have concluded, has the courage of his convictions. It's just that those convictions aren't about unity and restraint. They're about moving constitutional law to the right, as President Bush chose him to do.