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."
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