Visionaries on the Supreme Court:

Cass Sunstein's article on the apparent absence of visionaries on the Supreme Court (free registration required) claims that there are no liberal visionaries among the current Supreme Court justices. He argues that the visionary justices of the past "had large and powerful visions of the meaning of the Constitution, and they worked hard and often successfully to convince their colleagues to embrace that vision. These justices also displayed undeniable courage, arguing on behalf of their constitutional vision regardless of its inconsistency with orthodox opinion in important circles--or even in the nation as a whole." Sunstein believes that the two most liberal justices on the Court "Ruth Bader Ginsburg and Stephen Breyer--are exceedingly careful lawyers who usually avoid grand pronouncements" - and therefore don't qualify as visionaries by his definition. By contrast, he believes that conservatives Antonin Scalia and Clarence Thomas do qualify, because they "have a clear and large-scale vision for constitutional law."

I think that Sunstein is right about Thomas and Scalia, though he probably exaggerates the clarity and consistency of the latter's views (see this article by co-blogger Randy Barnett). Sunstein is also probably wrong in describing Scalia as a supporter of "significant limits" on congressional power, in light of Scalia's concurrence in Gonzales v. Raich, which essentially endorses the abolition of any such limits (at least under the Commerce Clause).

However, Sunstein is wrong about Breyer, and probably also Ginsburg. 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." I explain the broad scope and ambition of Breyer's theory in this review. 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. There are, to be sure, ambiguities and contradictions in Breyer's theory (some of which I point out in my review), but the same is true of Scalia and Thomas.

Justice Ginsburg is a more complex case. Unlike Breyer, she has not laid out a comprehensive theory of constitutional law. However, as head of the ACLU Women's Rights Project in the 1970s, she successfully advocated for strong judicial scrutiny of laws classifying on the basis of gender, a cause she has continued to pursue on the Court in opinions such as United States v. Virginia. More broadly, her 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). Unlike Breyer and Scalia, Ginsburg has not written any articles or books that lay out her constitutional vision in detail. But neither did most of the past visionaries discussed in Sunstein's article, including Brennan and Marshall.

It is, however, true that today's Supreme Court visionaries - on both the right and the left - have not succeeded in getting the Court to endorse their views across the board. The reason for this, however, is not lack of vision but the closely divided nature of the Court over the last twenty years. At least through the early 1970s, Brennan and Douglas had the advantage of working with an overwhelming liberal majority on the Court that supported their agenda on most major issues. Scalia, Thomas, Ginsburg, and Breyer have not enjoyed comparable good fortune.

Related Posts (on one page):

  1. Visionaries on the Supreme Court:
  2. Sunstein on Supreme Court Visionaries: