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Friday, May 18, 2007

Do the Justices Need Glasses?

In the New Republic Online this week, Cass Sunstein argued that there are no more “liberal visionaries” on the Supreme Court. Sunstein defined visionaries as justices who have a grand view of the Constitution and attempt to implement it through their opinions and their influence on their colleagues. He believes that such visionaries have a significant impact on the Court and on the public’s view of the law and the Constitution, even when they are in dissent. While Sunstein considers Justices Thomas and Scalia to be visionaries of a conservative stripe, he deemed the jurisprudence of liberal Justices Breyer and Ginsburg far too cautious to effect any grand changes in the law.

Ilya Somin of Volokh Conspiracy disputed Sunstein’s portrayal of Ginsburg and Breyer:

Justice Breyer not only has a “clear and large-scale vision for constitutional law,” he has written an entire book promoting his view that the Court should promote “active liberty.” ... Breyer's agenda for the Court may not be “large and powerful” enough to be called “visionary,” but it is at least as sweeping as Scalia’s.

Justice Ginsburg is a more complex case. Unlike Breyer, she has not laid out a comprehensive theory of constitutional law. ... [H]er opinions often champion the longstanding liberal view that courts should closely scrutinize laws that seem to discriminate against groups that are underrepresented in the political process (e.g. - blacks, gays, and women), but not those laws that seem intended to help them (e.g. - affirmative action programs).

Jack Balkin of Balkinization also questioned Sunstein’s thesis:

Justices do not become “visionaries” in the eyes of history in isolation from larger political and social events. We tend to regard Justices as visionaries if (1) they have strong, programmatic views about the meaning of the Constitution and (2) they are allied with or become useful to powerful and ascendant social movements of their day. … Liberals have not been part of a politically dominant and ascendant social movement for a long time; they have been fighting a defensive battle for about thirty years. …

If a powerful new social movement arises on the left (which may happen if the Republican Party implodes due to the Iraq War), Sunstein need not worry. There will be future liberal Presidents, and they will appoint new liberal Justices who are visionaries in anyone's sense of the word.

One thing is clear, “vision” is in the eye of the beholder.

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