Folks are wondering what kind of thumbprint Barack Obama should be leaving on the U.S. Supreme Court. It's hardly a theoretical question. Justice John Paul Stevens will soon be 89. Justice Ruth Bader Ginsburg is 75. And while both have insisted they aren't going anyplace anytime soon, the rumor mill continues to whisper that Justice David Souter (a mere 'tween at 69) is also thinking about packing it in.
The prospect of a liberal slot on the court being filled by a liberal president has some liberals dreaming big—as was evidenced in a piece last weekend, by Adam Liptak, asking whether President Obama should appoint someone "who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall?"
Today's high court is balanced between four conservatives and four moderate liberals. Moderate-conservative Anthony Kennedy remains the deciding vote in hotly contested cases. But liberals have long fussed that despite this 4-1-4 lineup, the court has still lurched far to the right of mainstream American thinking. One of the most vocal proponents of this view is Harvard's Cass Sunstein, who wrote in 2007 of a massive rightward tilt at the high court: "What was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists." To those who doubt that the court is now more conservative than ever, a study (co-authored by Richard Posner) last year showed that four of the five most conservative justices to serve on the court since 1937 are sitting on the current Supreme Court.
But beneath the claims that the court has shifted radically rightward with each successive appointment lurks the sense that the remaining liberals have somehow let us down. Right or wrong, critics continue to insist that even though each team has four players, they have the lions and we have the Aristocats. The University of Chicago's Geoffrey Stone describes the current court as "flying on one wing." As parlor games go, What's Wrong With the Liberals of the Roberts Court? only gets you so far. As Liptak's article makes plain, beyond vague assertions that the court's liberals are just too, well, Jarlsberg-on-mayo-on-white, it's never clear what seems to be lacking there. Indeed, the most consistent aspect of the liberal grousing about the court is that there is no left-wing counterpart for Justice Antonin Scalia.
This longing for a Scalia is often cast in purely acoustic terms. Liberals evidently want someone loud.Here's Geoffrey Stone telling Liptak that he's looking for "a really powerful, articulate, moral, passionate voice on the left." Nan Aron, president of the Alliance for Justice, echoed that wish when she told the Los Angeles Times: "I think Obama would want to make a statement with his Supreme Court justices. We hope for a justice who can replace the lost voice of an Earl Warren or Thurgood Marshall or William Brennan." And my colleague Emily Bazelon has also asked for more noise from the left: "The goal should be to find someone who can speak with a roar that matches Scalia's."
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.