“Obama’s Law” is not as it seems

“Because federal judges receive lifetime appointments and often serve through the terms of multiple Presidents, it behooves a President—and benefits our democracy—to find nominees who can garner some measure of bipartisan support” – President Barack Obama in The Audacity of Hope

In a forthcoming issue of The New Republic Justin Driver persuasively suggests that both liberals and conservatives have misunderstood the President’s legal philosophy and its implications. Driver’s piece is a fantastic read, and he makes an argument that may seem counterintuitive at first. The analysis is portrayed through the competing constitutional visions of Lawrence Tribe and Cass Sunstein—respectively mentor and colleague to Obama—whose ideas are evaluated side by side.

The Supreme Court. Image used under a Creative Commons license courtesy of ken mccown.

Tribe is the foremost living constitutional scholar on the left who famously sunk the Supreme Court nomination of Robert Bork and, in the process, forever ruined his own chance of serving on the nation’s highest court. He also took Obama under his wing while he was a Harvard law student. Sunstein was Obama’s colleague at the University of Chicago who was appointed to run the Office of Information and Regulatory Affairs.

Driver describes Tribe’s constitutional vision at length and largely summarizes it as follows:

The judicial duty, in Tribe’s estimation, compelled courts to advance contemporary notions of justice. “I reject the assumptions characteristic of Justices like Felix Frankfurter and scholars like Alexander Bickel,” Tribe wrote. “The highest mission of the Supreme Court, in my view, is not to conserve judicial credibility, but in the Constitution’s own phrase, ‘to form a more perfect Union,’ between right and rights within that charter’s necessarily evolutionary design.” Although Tribe’s preface made clear that he understood courts were not all-powerful institutions, he nevertheless insisted that judicial actors were uniquely positioned to “raise distinctive voices of principle.”

However, he sets up a nuanced contrast with Sunstein. Although Sunstein and Tribe largely agree on most constitutional questions, they approach the process of change differently:

Instead of looking to the judiciary for societal reform, Sunstein advocated redirecting constitutional energy into democratic arenas. “The recent retreat of the federal judiciary from social reform … might ultimately count as one of many steps in the revival of democratic processes in America and, not incidentally, in the spurring of involvement of heretofore weak or passive groups in those processes,” he contended. Sunstein then dusted off precisely the sort of anxiety about judicial decisions that had initially drawn Tribe’s fire many years earlier: “Any set of interpretive principles for the Supreme Court must be centrally concerned about the potentially undemocratic character of judicial intrusion into political processes.”

Driver concludes that Obama largely sympathizes with Sunstein, which accounts for his disappointing record in the realm of judicial nominations.  The current administration has not only nominated fewer lawyers to the judiciary, but it has failed to promote future judges who would forcefully advance a liberal Constitutional vision. In Driver’s own words:

[Obama’s] judicial moderates appear generally uninterested in reversing the steady, conservative-led erosion of criminal defendants’ rights, including the Fourth Amendment’s prohibition against unreasonable searches and seizures and the Fifth Amendment’s protections recognized by Miranda. Nor do Obama’s judges seem likely to challenge other disconcerting features of the prevailing judicial order, which jealously protects the interests of corporations and high-ranking government officials but turns a blind eye to casualties from the war on drugs and the funding inadequacies that plague students attending poor public schools.

I think it’s worth setting up a small thought experiment in reaction. Currently Perry v. Schwarzenegger is making its way through the courts and may ultimately reach the Supreme Court. (For quality analysis of the case see Gabe Arana.) If Perry were to reach the Supreme Court and Theodore Olson and David Boies were to prevail, this would be a major accomplishment for the gay rights movement and a welcome development in general. However, such a decision would have much less legitimacy and resonance with the country than the recognition of equal marriage rights carried out by the legislature and signed by the president. In this sense, Sunstein and Obama’s instincts are correct. It is better not to have courts setting landmark precedent and to avoid the mentality of “court-centeredness,” as Sunstein characterizes Tribe’s vision.

However, problems arise when this lofty wish bumps against the reality of the contemporary conservative legal movement. Despite what some might argue, the days of conservative judicial restraint are gone, and one needs only to look at the string of conservative legal successes, culminating in Citizens United, to see where Obama’s vision falls short. There is no question the Federalist Society is happy to see the President avoid strongly promoting his constitutional vision as they dismantle established liberal jurisprudence case by case. The Court’s conservative wing will unquestionably continue to overturn established precedent and promote an aggressively pro-business agenda in the future.

Although the ideal moment for Obama to nominate visionary liberal justices may have passed, and recent events surrounding the nomination of Goodwin Liu might be disheartening to prospective judges, Obama would be well served to take Driver’s message to heart and take on the conservative legal establishment on its own terms.