Imagining a Liberal Court

By NOAH FELDMAN
New York Times Magazine

I .THE CRISIS

After decades of stagnation, progressive constitutional thought is reaching a crisis point. Consider that the two great “liberal” justices who retired from the Supreme Court most recently — David Souter in the spring of 2009 and John Paul Stevens a year later — were conservatives. Not only were both appointed by Republican presidents, but both also subscribed loosely to the adage “If it ain’t broke, don’t fix it.” With a handful of exceptions, neither favored identifying new constitutional rights where none existed before. Their status as liberals came from the fact that, as the court on which they served tilted to the right, they held their ground as moderate Republicans, consistently voting to sustain the constitutional rights that were discovered by the Supreme Court before they were on it. To be sure, without their votes, the liberal constitutional legacy of the period stretching roughly from Brown v. Board of Education in 1954 to Roe v. Wade in 1973 would have been reversed. But Souter and Stevens were not independent forces for progressive change in American life.

To a great extent, the crisis of liberal thought on the Supreme Court is a result of liberalism’s success. From the time that Franklin Roosevelt’s appointees came to form a majority on the Supreme Court until the appointees of Richard Nixon and Ronald Reagan came to predominate, liberal constitutional thinking had two major objectives — both of which it largely achieved. First, it sought to give bite to the 14th Amendment’s promise to extend to all persons the equal protection of laws. The Brown decision voiding racial segregation in schools as unconstitutional was the most famous piece of the court’s push for equality. The same ideal was also encompassed in holdings that demanded “one person, one vote” and — more controversially — that upheld affirmative action as consistent with the values of the Constitution.

Second, the liberal Supreme Court interpreted the constitutional promise of liberty as a guarantee of individual autonomy — the freedom to make important life decisions without government interference, especially in the realms of sex and reproduction. Roe v. Wade was the culmination of this movement toward personal liberty. The court took the rubric of a right to privacy that it found in what it called the “penumbras, formed by emanations” of various constitutional amendments and extended the right from marital contraception to abortion. Although the court has never embraced a right to die, it has in recent years, through Justice Anthony Kennedy, spoken of “the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”

Since Roe, the majority of the most-pitched battles in the Supreme Court have concerned whether the liberal visions of equality and liberty should be reined in. Much of the time, as with the court’s compromise rulings on affirmative action and partial-birth abortion, the result has been uneasy deadlock and indecisive squabbling. The most prominent exception is the issue of gay rights, which the court came late to embracing in Lawrence v. Texas in 2003 and which — through the same-sex marriage question — remains in the court’s future. It is not too much to say that its resolution (one way or the other) will be the last act of the liberal constitutional revolution.

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