A remarkable column from Stephen Henderson, the deputy editorial page editor of the Detroit Free Press, who used to cover the Supreme Court. A few gems:

1. "[T]he vacancies could be plentiful, particularly if a President Clinton or Obama serves two terms.... On the outside chance that the next president gets four or five appointments, we could be in store for a new core of young, liberal justices who will serve for a generation. That'll mean significant change in the august chambers of the court, where conservatives have, since Ronald Reagan's election in 1980, put as definitive a stamp on the high court as any in its history." But somehow, despite that,

   No one's saying there should be a liberal dominance akin to what we've seen from conservatives over the last few decades. And the chances of that seem slim anyway.

   But in the next four or eight years, we might see a return of something I think is fairly important in the law: balance. We would all benefit from more of that.

   So a 5-4 conservative/moderative conservative Court is "dominance," but if several Justices retire and the Court switches to (say) 5-4 or 6-3 liberal/moderate liberal, that would just be "balance."

2. "The more conservative court orthodoxies, with their emphasis on cabined textual interpretation, restriction of individual liberties to those enumerated in the Constitution, and skepticism of government interference in economic issues, is just about the only school of thought that matters at the high court anymore." Got it — Lawrence v. Texas never happened; unenumerated abortion rights were overturned; likewise with other unenumerated rights (such as parental rights).

3. "It shouldn't matter whether you agree with those tenets or not; the truth is that they shouldn't be the only assumptions with importance." Of course it does matter whether one agrees with those tenets or not — if they are right, then they should prevail; if they are wrong, they shouldn't.

4. "With more Democratic-appointed justices, I think we'd see more pushback against the conservative dominance [among other things, on racial issues]. I think we'd see a whole category of more liberal legal thought get a stronger airing where it counts most." But of course the more liberal legal thought has gotten plenty of airing in dissents. By "stronger airing" the author must mean "victories." He's not looking for more debate or more balance, just more victories for his side; a perfectly plausible desire, but why deny it?

I should note, though, that the use of "equanimity" in the headline — "Balance the court: A Democratic president could bring equanimity to the Supreme Court" — might not be the author's fault. (Headlines are almost never written by the author of a column, though it's possible that the matter might be different for authors who are also editors of the newspaper.)

Stephen Henderson of the Free Press responds to my criticism of his column about the Supreme Court:

Obviously, Eugene and I'd disagree about the court and its make-up. I'm fine with that. Eugene's an expert on the court, and I have complete respect for the way he sees things.

That said, I saw the key passage of my column as this one:

"It's about the assumptions that are now indelibly woven into the court's thinking, the whole approach the justices -- liberal or conservative -- seem to take to resolving cases. The more conservative court orthodoxies, with their emphasis on cabined textual interpretation, restriction of individual liberties to those enumerated in the Constitution, and skepticism of government interference in economic issues, is just about the only school of thought that matters at the high court anymore.

It shouldn't matter whether you agree with those tenets or not; the truth is that they shouldn't be the only assumptions with importance."

So what I'm lamenting, I guess, is less about the justices in particular, and more an expression of my utter jealousy at the extent to which conservatives have woven their constitutional approach into the very fabric of the court. That is, of course, a result of Republican electoral dominance; that's just the way that goes. But yes, I do think the court is worse off for the fact that many liberal schools of thought about the court and the Constitution are utterly locked out of the affairs on First Street. There is a whole generation of progressive, liberal thought about those issues that has just not been reflect on the high court. (think of Akhil Reed Amar's wonderful take in his book about how the Bill of Rights was changed by the Civil War amendments, as just an example.)

The approaches of justices like Scalia, Thomas (yes, I know the difference between the two), Roberts and Alito is not matched on the opposite side. (Maybe you'd also argue that's because there IS no match, anywhere, to the conservative approaches, but that's another discussion.)

It was in that context that I wrote: "With more Democratic-appointed justices, I think we'd see more pushback against the conservative dominance. I think we'd see a whole category of more liberal legal thought get a stronger airing where it counts most." I'm hoping to see some of the more disciplined liberal approaches join the discussion at the court.

Seriously, I wasn't JUST talking about results.

I much appreciate Mr. Henderson's taking the time to respond, but I guess I'm still unpersuaded. It sounds like Mr. Henderson is criticizing the liberals and moderate liberals on the Court for not being eloquent, thoughtful, or liberal enough -- but if one looks at the concrete examples given in his column, it's hard to see the support for his case. Let me take them in order:

1. "Cabined textual interpretation" -- I'm pretty sure that the liberal and moderate liberal Justices on the Court are far from wedded to "conservative court orthodoxies" on the subject. (Perhaps even some of the conservative and moderate conservative Justices aren't always as into cabined textual interpretation as they should be.) Like all Justices, the liberals sometimes focus on the text and sometimes go quite far beyond it. It's hard to see, for instance, the liberals' view on abortion rights as a matter of "[c]abined textual interpretation." (Even if one thinks the Ninth Amendment or some other constitutional provision provides a textual hook for such enumerated rights, surely it takes more than "[c]abined textual interpretation" to get from the text to this particular right.)

2. "Restriction of individual liberties to those enumerated in the Constitution" -- the liberal and moderate liberal Justices form the majority of the support for Lawrence v. Texas and for continued protection for abortion rights, who expressed support for continuing unenumerated rights jurisprudence in Glucksberg. Many of them also support parental rights and substantive due process rights to limits on punitive damages (limits that, even if implicit in the Due Process Clause, are surely not expressly enumerated in the Constitution).

3. "Skepticism of government interference in economic issues" -- the liberal and moderate liberal Justices' votes in constitutional economic rights rights, like Kelo v. City of New London, don't exactly show skepticism of government interference. Likewise, while I haven't followed closely all the liberal and moderate liberal Justices' statutory decisions, I'm pretty sure that they don't stick with any "conservative court orthodox[y]" on the subject.

4. "[T]he scope of individual rights in the Constitution" -- surely here too the liberal and moderate liberal Justices' aren't sticking with conservative orthodoxies (though indeed in some situations all the Justices agree, or some conservative Justices join the liberal Justices, or some of the liberal Justices join the conservative).

5. "Race-consciousness of any sort -- even when designed to ameliorate past racial injustice -- is now routinely equated with racial discrimination" -- here, the liberal and moderate liberal Justices have been squarely opposed to the conservative position (though one of them, Justice Stevens, had joined the conservatives in the 1980s on some such decisions). Their views seem to well reflect the mainstream of "progressive, liberal thought" on the subject.

Now of course one could always find some scholarly views -- whether liberal, conservative, libertarian, or otherwise -- that are not being expressed by any Justice. Sometimes that's good and sometimes that's not. But as best I can tell, on every specific substantive issue that Mr. Henderson had raised, the liberals and moderate liberals on the Court have indeed often taken liberal positions, and articulated them well. Maybe there is "a whole generation of progressive, liberal thought about those issues that has just not been reflect on the high court," but nothing in the original column evidences that. There's plenty of liberal and conservative constitutional thought on the Court. The conservative dominance, such as it is, is precisely in the results (some of the time), not in the conservatives' supposedly having taken over the ideological debate, or having "woven their constitutional approach into the very fabric of the court" (at least to the exclusion of liberal constitutional approaches that are also woven into the same fabric).

As to the suggestion that the Bill of Rights has been changed by the Fourteenth Amendment, at least in its incorporation to the states, that's hard to evaluate as a global matter, and without reference to specific cases that might lead the Justices to consider adopting such a substantial departure from precedent. (The precedent as to most, though not all, Bill of Rights clauses is that they are incorporated against the states, and apply the same way to state law and federal law.) But I can say that, as to one provision of the Bill of Rights, one Justice has indeed argued that the Fourteenth Amendment shouldn't just apply the Bill of Rights to the states, and has even cited Akhil Amar on this score. That is, of course, Justice Thomas, writing about the Establishment Clause.