Cass Sunstein of the University of Chicago law school says that John Paul Stevens: a) was at the Supreme Court’s center in 1980, with four justices more conservative than he was and four more liberal; b) is the most liberal justice on the Court in 2007; and c) this change came about not because Stevens made “any significant change in his own approach, but because of a massive shift in the Court’s center of gravity.” Sunstein deplores this massive shift: Both “the Court and the nation benefit from a range of views and approaches, and something has gone badly wrong if the Court has a strong right wing without any real left.”
Sunstein’s position on the idea of the Court reacquiring a real left wing, however, is a little difficult to pin down. On the one hand, he calls William Brennan and Thurgood Marshall, the two justices farthest to the left of John Paul Stevens in 1980, “visionaries, offering a large-scale sense of where constitutional law should move. . . . They wrote in clear, bold strokes . . . [and] their opinions pressed the Court toward moderation . . . ” On the other, Sunstein’s essay has an obligatory “to-be-sure” paragraph, which says “the Court does best if it proceeds cautiously and incrementally, with respect for the elected branches of government. Marshall and Brennan, no less than Scalia and Thomas, tried to use the Constitution to impose a contestable political vision on the nation.”
It would not be hard to compile a list of cases where Marshall and Brennan disdained both caution and elected officials in order to impose their contestable vision. Roe v. Wade would be at the top of the list. Sunstein numbers himself among the liberal constitutional scholars who believe Roe was wrongly decided, if I correctly understood remarks he made at the recent American Political Science Convention. He has also, if memory serves, written of his misgivings about Missouri v. Jenkins. In that 1990 decision the Court upheld the gold-plated school reform plan imposed by a district judge, designed to achieve racial balance in the Kansas City school district by making all the schools magnet schools, irresistible to white suburban families. The Supremes also ruled that the voters of the city had no right to vote thwart the judge’s sweeping plan by voting against the 100% increase in property taxes it required .
The decisions where Marshall and Brennan didn’t get their way are as scary as the ones where they did. Had the visionary duo found one more vote, the Court would have ruled, in Milliken v. Bradley, in favor of a school busing program that would have sent children careening around the entire Detroit metropolitan area like black and white ping pong balls. Similarly, they were one vote away from a majority to rule the Hyde Amendment unconstitutional in Harris v. McRae. Their position was an extension of the logic of Roe: just as the Constitution forbids state legislators from outlawing abortion, it prohibits Congress from defunding it, as long as there’s a Medicaid program that funds lots of other surgical procedures. (The centrist John Paul Stevens was one of the dissenters who agreed with Brennan and Marshall on this point.)
I don’t know Prof. Sunstein’s position on these cases. However he might have voted, I think there is a legitimate question whether his desire for a “range of views and approaches” on the Court has more to do with convenience than principle. I don’t recall, that is, any liberal scholar or journalist worrying 30 years ago that something had gone badly wrong in a Court with a strong left wing but no real right. The sudden discovery of the benefits of a balanced Court strikes me as no less asymmetrical than the liberal position on the importance of precedent, which boils down to the position that conservatives have a moral duty to uphold past decisions that liberals like, and liberals have a moral duty to overturn past decisions conservatives like.
I’m unaware of Prof. Sunstein’s career plans, though assume that every prominent constitutional scholar believes he would be flattered by black robes. In the event that he is nominated to the federal bench by Pres. Hillary, and in the event there are any Republicans left on the Senate Judiciary Committee to make things interesting, I hope someone will ask him to elaborate on the idea that William Brennan and Thurgood Marshall are liberal heroes with whom modern liberals fundamentally disagree.