THE PLANK MAY 1, 2009
Jonathan Adler over at the Volokh Conspiracy makes two great points about Justice Souter's retirement. First, as he notes, it's simply a mistake to say that Souter's departure won't have much impact on the voting lineup on the Supreme Court. That may be true on most high-profile political issues the Court addresses, but in cases dealing with more mundane matters--that is, the majority of the Court's docket--the fault lines are more fluid and Souter's departure could make a real difference, notably in the realms of criminal procedure and punitive-damage awards. This is especially true given that Justice Souter's replacement will probably serve for two decades or more, and no one has the faintest clue what the most salient issues confronting the Court will be during most of that time. Twenty years ago few would have guessed that the Court would soon dramatically revamp its Commerce Clause or Confrontation Clause doctrine, but here we are.
Professor Adler continues:
Many on the Left say they want President Obama to nominate a "liberal Scalia".
I would say they should be careful what they wish for. Justice Scalia's
opinions may be well-written and intellectually satisfying, but the
same things that can make his opinions fun to read may prevent his
opinions in many areas from commanding a majority of the Court. ... It's not an accident there's a book of his opinions called Scalia Dissents.
So, perhaps paradoxically, a liberal nominee who demonstrates less
ideological fervor, but is more strategic and conciliatory, might be
more successful at moving the Court leftward.
But I think there are many liberals who genuinely do want a liberal Scalia in precisely the sense that Adler identifies. Liberals tend to agree that they want the Court to be more liberal, but it isn't always clear what they want it to do. Conservatives, for better or for worse, are able to identify big areas of the law where they'd like to see the Court's jurisprudence change radically, whether it be reversing Warren-era civil liberties precedents or, in the more extreme case, returning government to its pre-1937 role. And liberals want ... somewhat fewer restrictions on affirmative action and somewhat more on police searches? Those changes may or may not be desirable, but they aren't the stuff a legal movement is made of.
What I suspect many liberals really long for--and this is reflected in the Dahlia Lithwick piece Adler links to--is not so much someone to push the Court in a substantially more liberal direction (at least in the short term), but someone to unabashedly play culture warrior in the way that Scalia has sometimes done. Someone to "speak with a roar" and exercise "dramatic flair"--"some cross between Rachel Maddow and Emma Goldman," as Lithwick puts it. What they're unhappy with is not primarily the Court's decisions, but the absence of a liberal on the Court with the ability to capture the imagination of the public (and perhaps legal academia) in the way that Scalia has. To be a Supreme Court justice is to have access to a sort of intellectual bully pulpit that few other jobs come with, and it's in this capacity, rather than the doctrinal one, that liberals have been disappointed.
I'm not sure many liberals have given much consideration to the notion that there might, in fact, be a direct trade-off between public dynamism and behind-the-scenes effectiveness. But it's a question they'll now have to grapple with sooner rather than later.