Ilya Somin of Volokh Conspiracy disputed Sunstein’s portrayal of Ginsburg and Breyer:
Jack Balkin of Balkinization also questioned Sunstein’s thesis:
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).
One thing is clear, “vision” is in the eye of the beholder.
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.