Obama's Justice

As we contemplate the appointment of a new Supreme Court justice, two new books, released on May 1 by the American Constitution Society, will be particularly enlightening. A fundamental question in the developing debate over President Obama's eventual nominee concerns judicial philosophy. What does it mean to be a "progressive" justice in the modern era?

Keeping Faith with the Constitution, by law professors Goodwin Liu, Pamela Karlan and Chris Schroeder, critiques the "conservative" approaches to constitutional interpretation -- originalism and so-called strict construction, and then traces out a more progressive approach to constitutional interpretation, which the authors describe as "constitutional fidelity," which is designed both to preserve the Constitution's meaning over time while at the same time recognizing that the Framers intended the Constitution to be a "visionary document." In the view of the authors, the Constitution "charts the centuries-long progress of our nation toward greater liberty and equality and more effective democratic government." They emphasize that, as each critical juncture in our constitutional history, the Framers "inscribed our fundamental values into the Constitution with broad language and expansive principles open to future interpretation." The challenge for the Supreme Court to remain both true to the past and responsive to the present.

The second volume, It is a Constitution We are Expounding, edited by Pamela Harris and Karl Thompson, is an anthology of some of the best writing on constitutional interpretation by judges, scholars, and others. The excerpts including in this work present a variety of resources for constitutional interpretation and explore a wide range of interpretative methodologies. The main thrust of this volume is to show that where the Constitution's text fails to provide a clear answer (what is "equal protection of the laws" or the "free exercise of religion"?), the proper response is neither to throw up our hands and toss the Constitution aside nor to make up the meaning out of whole cloth, but to look to the recognized tools of constitutional interpretation, which are rooted in the Constitution itself. It is a Constitution We are Expounding includes excerpts from works by such constitutional thinkers as Laurence Tribe, Robert Bork, Thurgood Marshall, and Richard Posner.

It is a happy coincidence that these two works come to us at precisely this moment in our history. Anyone interested in understanding the judicial philosophy that President Obama is likely to seek in his Supreme Court nominees can do no better than to read these works. For more information about these volumes, you can go to www.ACSLaw.org.

Comments

[rwext]

supreme court justices are umpires.. Not players , coaches , fans or owners ...They call the game by the rules . In 2000 5 justices , one liberal, ruled that the FLA supreme were in error of law .

[dogtowndennis]

Attaching the word "progressive" to describe who we want on the Court makes me cringe. That label may be apt (and fashionable) enough to apply to legislators, but it implies that interpreting the Constitution is just a matter of adopting a preset range of policy goals, roughly the polar opposite to what Antonin Scalia does. But Scalia is an intellectual charlatan. The only way to legitimize the power of the Supreme Court is to acknowledge that it must draw its conclusions from consistent application of legal principles, specifically those drawn from the Constitution. These start with the principle that the Framers set up a judicial branch to serve the anti-democratic goal of protecting minorities from majorities. Even progressive majorities.

[blueskybigstar]

Progressive means willing to try new things in order to solve problems. The Republicans had the advantage when so few things had been studied. Now, there are masses of evidence of what works and what does not. The people just need the will of implementation. A Social Democracy made now can be superior to any in the past due to technology and the efforts of so many years to research the true causes of the nation's problems. It is time that we start thinking of ourselves as a nation so that we can have a more stable society and work together to eliminate corruption in our country. There is no left or right when it comes to issues of right and wrong. Progressives disagree more than other groups because they all have their own ideas of how to fix things. However, they usually can admit when they are wrong, are polite in discussion, and are open to new information. Being a progressive is about the method of coming to a better understanding than what we had before. Truth and fairness is each person's civil rights. Let us work to not overwork our workers, give families time to be families again, provide constructive interests and pursuits to people who do not know where to go, provide free education, and enjoy a universal health care system that we can model on the best ones in the world and those are single payer.

[suec03]

I hope that as the Supreme Court story develops, some of these authors will be invited to be guests on news shows. I hope these shows can reach beyond just their contracted legal experts to include some new voices, especially from the American Constitution Society, which was formed to stand against the Federalist Society positions and offer a different view of the Constitution.

[AnotherMcIntosh]

Thank you for pointing out the two books. They should be worth reading.

You mentioned, "Anyone interested in understanding the judicial philosophy that President Obama is likely to seek in his Supreme Court nominees can do no better than to read these works."

It is highly likely that, if asked, you would advise him to appoint a progressive.

That would be welcomed by a great many people.

But why would you believe that he has even the slightest intention of appointing a progressive given his actual performance and his disinclination to appoint progressives to his cabinet?

Unless he changes his course, he is going to tell us that he is a "centrist" and nominate someone who is not a progressive. If we're lucky, the nominee will not be a Republican or at least not a neocon Republican. On the other hand, you can never know.

His logical choice, based upon his actions rather than any "progressive" label, would be Janet Napolitano.

[PlaceboStudman]

We need to start taking a more Libertarian approach to the law and the constitution. ie, "you have a right do to whatever you feel is right for your life, so long as it doesn't affect me negatively" We need to look at facts and realities, not emotional propoganda. We need to ask the questions "How will this law/ruling affect me, and how will it affect you?" (how if at all does gay marriage threaten heterosexual marriage?) We need to base these decisions on logic and reason and not blind faith. (God says its wrong, so we shouldn't allow it) We need to enforce more personal responsibility for people's actions, (you buy a gun and you're going to be subjected to a much stronger background check than currently) and make them accountable for their actions if they affect others. I believe There is an awful lot of prosecution for what is essentially thought crime. How does my decision to smoke marijuana affect anyone else if Im just sitting around with buddies? Shouldn't the litmus test be, if you ACTUALLY hurt someone, THEN you get punished? Not, "we're going to punish you for doing something that MIGHT hurt someone"?