This yearning for a more powerful progressive voice at the court itself encompasses several distinct criticisms. The first is that the court's liberals are just not very persuasive. As Stone explained to Liptak, what's missing at the court is someone to "pull the other justices who are inclined to be sympathetic to that voice in that direction." Why, in other words, can't Ginsburg or Souter just get Justice Kennedy on speed dial? Whether they persuade by the force of their personality, a la Brennan; or their life story, a la Marshall; or their browbeating analysis, a la Scalia, the big justices tend to be the ones with the big ideas. Once in a while, Breyer or Ginsburg has a big idea. But for the most part, the court's liberals work the law as if they were working a crossword puzzle, "Um. Honey, what's a seven-letter word for 'suspend the right of habeas corpus'?"
It's sometimes said that in addition to being voiceless, or at least librarian-voiced, the court's liberals cannot see big. Thus we often hear that the court's liberals lack a revelatory constitutional vision. Sunstein, for instance, once lamented the "absence of anything like a heroic vision on the court's left." He writes longingly of Marshall and Brennan as "the Court's visionaries, offering a large-scale sense of where constitutional law should move." What Scalia has always done so much more effectively than anyone else at the court is sell his view of originalism and textualism. He has a coherent interpretive rulebook to which he almost always adheres. Oh, and he can explain it in 60 seconds on 60 Minutes.
Yet others have suggested that what's been lost at the left pole of the court is not grand vision but heat. The only difference between Scalia's originalism and Breyer's active liberty is that Scalia believes originalism will save us all, whereas Breyer thinks active liberty is, well, pretty darn neat. Joan Biskupic made this point about oral argument almost two years ago, noting that "when it comes to dramatic flair, the conservative duo of Roberts and Scalia has no counterpart among the four justices in the court's liberal wing." The liberals, she wrote, have "distinct styles, from polite yet pointed (Stevens) to professorial and rambling (Breyer)." But, she wrote, "they rarely come close to displaying the passion, intensity and frequency of questions of the conservative pair."
If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit. Preferably this persuasive, passionate constitutional bomb-thrower is also a woman, and, with any luck, an African-American or Latina or Asian-American as well. Putting it all together, it's hard to come up with even one Scalia-like candidate, although some cross between Rachel Maddow and Emma Goldman sounds like a good start.
My own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court, even if she did exist, and that we need to yank our wish list out from under the enormous shadow cast by Antonin Scalia, William Brennan, and Thurgood Marshall, anyhow. Yes, they are forces of nature, and the court is a better place for having each of them. But pining for a liberal Scalia isn't the way to push the Roberts Court into the future. The day of the lions may be ending at the court. And that might not be a terrible thing.
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