A new book edited by Jack Balkin and Reva Siegel collects essays that envision a progressive constitution by 2020. The odd thing about the book is that the editors stipulate that Warren Court-style judicial activism is dead, while still insisting that a progressive constitution in eleven years is possible or even likely. Hence they and their contributors have the formidable task of imagining how a progressive constitution could emerge without judicial involvement or with limited judicial involvement, or even in the teeth of resistance by a right-wing supreme court. The upshot is that some contributors advocate judicial restraint so that courts will not block progressive legislation duly coughed up by legislatures—a backhanded kind of progressivism if that counts as progressivism at all—while others simply advocate progressive legislation of various flavors without saying much about the courts at all, hoping that this legislative activity will have constitutional implications. Others address a third way, but with mixed results. Adrian Vermeule and I wrote a review for The New Republic, which you can read here. Some of Balkin’s blog posts on the book can be found here, here, and here.
If there is any lesson of the last twenty-eight years of supreme court jurisprudence, it is that supreme court justices—on left and right—have no interest in judicial restraint. Certainly, they have no incentive to engage in restraint; no one of any importance advocates it. As Obama loads up the federal courts with liberals—and especially if he has the chance to appoint a few more supreme court justices—academics will need to supply the theories that rationalize their decisions, an agenda that is inconsistent with the premise of The Constitution in 2020. Young legal academics will flock to the standard even if Balkin and Siegel’s contributors stick to their guns. The book is mistimed but that was an inevitable consequence of its whole conception. Balkin amusingly told NPR, “My view of the Supreme Court is sort of like the husband in the French farce…. He’s always the last to know.” He thinks that the Court takes its lead from political developments including social movements. But a better candidate for the husband in the French farce is not the supreme court but the legal academy. Nothing to be ashamed of, but academics are thinkers, not prophets or even doers. “The owl of Minerva takes flight at dusk.”