//  10/16/18  //  In-Depth Analysis

Win elections.  That’s been a constant refrain among many progressives who’ve been watching (and lamenting) the Court’s—really, the entire federal judiciary’s—shift further to the Right.  Win at politics, and you can win the courts. 

But winning elections isn’t enough.  Progressive majorities need to be willing to invest significant political capital in judges who are committed to a left-liberal jurisprudence—and, as importantly, who are willing to expound their constitutional theories on and off the bench.

Such an investment cannot be assumed.  President Barack Obama was (by my lights rightly) criticized by David Fontana and Micah Schwartzman, among others, for making rather cautious appointments of older, quite moderate judges to the federal courts of appeals in particular. 

Fontana and Schwartzman were worried principally that Obama wasn’t seeding a SCOTUS farm team.  But there’s another, more direct concern.  The federal courts of appeals are often the final word on many questions of law.  Thus the dearth of bold, progressive defenses of the administrative state, gun control, affirmative action, reproductive rights, anti-discrimination laws, and voting rights has unduly cramped—and asymmetrically cropped—our constitutional horizons. 

We need a coherent strategy to change that.  A big part of that strategy is thinking ahead to future nominations.  But we must also think about current judges and providing them with occasion and reason to embrace and amplify progressive constitutional theories.  At least four significant benefits would follow from these combined efforts.

First, vision and message.  Judges are uniquely situated to elucidate a constitutional vision that is sensitive to the times—and to the needs of those most dependent on the law’s protections.  Bold progressive judges can articulate just that kind of vision.  Even more, they can revive the powerful, often-forgotten message that courts can be agents of justice and, as Daniel Hemel recently put it, “bulwarks of democracy.”  It is hard to win any argument or persuade any adversary—let alone rally a political base—when judicial vision and messaging lack ambition and urgency. 

Second, cover and legitimacy.  Judges can vouch for academics and advocates who propound left-liberal constitutional theories and who, moreover, are potential judicial timber.  When, as has often been the case, moderate (center-left) judges keep those academics and advocates at some distance, it becomes easier to readily and credibly dismiss those groups as outside of the jurisprudential mainstream—radicals shouting into the wind.  To borrow Jack Balkin’s phrasing, their ideas remain “off the wall.”   

This is a particular shame right now, given the exciting and generative work on economic inequality, equal protection, and progressivism advanced by a new generation of constitutional theorists—and given the trenchant and creative advocacy of relative newcomers such as the Constitutional Accountability Center and Protect Democracy alongside old stalwarts like the ACLU. 

Going forward, much can be borrowed from the conservative playbook.  Right-leaning judges often give considerable credence to the ideas and projects of conservative academics and movement lawyers.  They therefore lend legitimacy to many of those scholars and advocates, thus ensuring them a place in the constitutional mainstream. 

Progressives are, in many respects, where the conservatives were in the 1960s and 1970s.  We thus likewise need to do more to integrate the realms of progressive judges, academics, and movement lawyers.  National ACS Conventions and other such splashy events that spotlight a couple of high-wattage judges are surely nothing to sneeze at.  But, in truth, integration of this sort requires retail connections—that is, broader, more frequent, and more workaday judicial engagement with innovative academic theories and advocacy projects. The result, one hopes, is to get those ideas “on the wall.” 

Third, transformative dissent.  Given the current composition of the courts, progressive judges may be lone voices of dissent, not just today but also for the foreseeable future.  Yet forceful and forward-thinking articulations of contrary constitutional visions are essential.  They are essential if for no other reason than to serve as reminders (especially to young lawyers) that there are other powerful and eminently reasonable constitutional philosophies.  Dissents of this sort can galvanize young lawyers who, in time, can convert those dissents into majority opinions. 

Here too there’s a conservative model to follow:  William Rehnquist.  At the beginning of his time on the Court, then-Associate Justice Rehnquist did a great deal to earn the moniker, “the lone dissenter.”  He certainly kept the fire warm for young conservatives back in the day when the Court was still leaning in the left-liberal direction; and, as those conservatives rose to positions of power and prominence, so did the vision that Justice Rehnquist outlined.  By the end of his time on the Court, Rehnquist wasn’t just Chief.  He was also the leader of a Court majority shaped and inspired by quite a few of those dissents. 

Fourth, a critical mass.  When Democratic presidents appoint mostly late-career moderates, they avoid many difficult confirmation battles and controversies.  But the more those presidents (and their allies in the Senate) rely on “safe” appointments, the more they will find themselves boxed in—for any nominee who doesn’t fit that “safe” profile becomes much easier to reject out of hand as dangerously outside of the judicial mainstream. 

This may be the one of the enduring lessons of Goodwin Liu’s failed nomination to the Ninth Circuit.  Many Republican Senators opposed Liu, raising objections principally to his left-liberal constitutional scholarship.  Liu ultimately withdrew his name from consideration, effectively lending credence to those insisting Liu’s constitutional vision was indeed out of step—and perhaps cementing a pernicious precedent against which to measure (and bar) other would-be progressive nominees.  More fervent White House support for Liu might have resulted in his being confirmed—and, just as importantly, created a counternarrative in which his jurisprudence is within the mainstream.  What’s more, the confirmation of judges like Liu (and, say, Caitlan Halligan and Victoria Nourse) would have made it even harder for Senators to oppose more anodyne, center-left jurists like Merrick Garland.

Again, there is a conservative counterexample: Brett Kavanaugh.  It took almost three years for Kavanaugh to be confirmed to the D.C. Circuit.  But President George W. Bush remained steadfast in his support.  As a result of that initial, protracted, and of course successful confirmation battle, Kavanaugh was well positioned to be appointed to the Court by the next Republican president.  One could imagine an alternative world in which Obama re-nominated Liu (say, after the Senate eliminated the filibuster for appellate judges), thereby laying the foundation for the latter’s elevation to the Supreme Court by a President Elizabeth Warren or Kamala Harris in 2021.        

*          *          *

It is true that these four reasons may not convince everyone.  Some progressives understandably feel unease and ambivalence about courts; such unease reportedly contributed to Obama (and, perhaps, Bill Clinton) not wishing to invest too heavily in potentially transformative judicial appointments.  But part of that unease is, quite possibly, a bit of a self-fulfilling prophesy.  The absence of powerfully progressive courts may make some doubt the value of powerful courts in the first place.  And the absence of a strong progressive constitutional jurisprudence may make us less enthusiastic, less convinced by, and less open to the possibility of courts playing an important, facilitative role in the democratic project. 

Remember, too: hewing to the approach taken by recent Democratic presidents has done little, perhaps nothing, to dislodge courts from their central role in our constitutional order.  Yet it has done a great deal to marginalize left-liberal jurisprudence.  We continue down that path at great peril. 


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Intensifying political conflicts are steadily shredding the buffers around our constitutional architecture. How should courts respond?

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U.C. Hastings College of the Law

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Judges should strive toward constitutional understandings that protect the interests of people on different sides of the ideological spectrum

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U.C. Hastings College of the Law

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