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Visionaries on the Supreme Court:

Cass Sunstein's article on the apparent absence of visionaries on the Supreme Court (free registration required) claims that there are no liberal visionaries among the current Supreme Court justices. He argues that the visionary justices of the past "had large and powerful visions of the meaning of the Constitution, and they worked hard and often successfully to convince their colleagues to embrace that vision. These justices also displayed undeniable courage, arguing on behalf of their constitutional vision regardless of its inconsistency with orthodox opinion in important circles--or even in the nation as a whole." Sunstein believes that the two most liberal justices on the Court "Ruth Bader Ginsburg and Stephen Breyer--are exceedingly careful lawyers who usually avoid grand pronouncements" - and therefore don't qualify as visionaries by his definition. By contrast, he believes that conservatives Antonin Scalia and Clarence Thomas do qualify, because they "have a clear and large-scale vision for constitutional law."

I think that Sunstein is right about Thomas and Scalia, though he probably exaggerates the clarity and consistency of the latter's views (see this article by co-blogger Randy Barnett). Sunstein is also probably wrong in describing Scalia as a supporter of "significant limits" on congressional power, in light of Scalia's concurrence in Gonzales v. Raich, which essentially endorses the abolition of any such limits (at least under the Commerce Clause).

However, Sunstein is wrong about Breyer, and probably also Ginsburg. Justice Breyer not only has a "clear and large-scale vision for constitutional law," he has written an entire book promoting his view that the Court should promote "active liberty." I explain the broad scope and ambition of Breyer's theory in this review. Breyer's agenda for the Court may not be "large and powerful" enough to be called "visionary," but it is at least as sweeping as Scalia's. There are, to be sure, ambiguities and contradictions in Breyer's theory (some of which I point out in my review), but the same is true of Scalia and Thomas.

Justice Ginsburg is a more complex case. Unlike Breyer, she has not laid out a comprehensive theory of constitutional law. However, as head of the ACLU Women's Rights Project in the 1970s, she successfully advocated for strong judicial scrutiny of laws classifying on the basis of gender, a cause she has continued to pursue on the Court in opinions such as United States v. Virginia. More broadly, her opinions often champion the longstanding liberal view that courts should closely scrutinize laws that seem to discriminate against groups that are underrepresented in the political process (e.g. - blacks, gays, and women), but not those laws that seem intended to help them (e.g. - affirmative action programs). Unlike Breyer and Scalia, Ginsburg has not written any articles or books that lay out her constitutional vision in detail. But neither did most of the past visionaries discussed in Sunstein's article, including Brennan and Marshall.

It is, however, true that today's Supreme Court visionaries - on both the right and the left - have not succeeded in getting the Court to endorse their views across the board. The reason for this, however, is not lack of vision but the closely divided nature of the Court over the last twenty years. At least through the early 1970s, Brennan and Douglas had the advantage of working with an overwhelming liberal majority on the Court that supported their agenda on most major issues. Scalia, Thomas, Ginsburg, and Breyer have not enjoyed comparable good fortune.

Related Posts (on one page):

  1. Visionaries on the Supreme Court:
  2. Sunstein on Supreme Court Visionaries:
Mark Field (mail):
I agree with Sunstein. Whatever philosophy Breyer or Ginsberg may have, their actual opinions are cautious and (pardon the word) conservative. That distinguishes them from Scalia and Thomas, who both allow their grand visions into their opinions (usually their dissents).

Now, the reasons for this may include your suggestion that Breyer and Ginsberg don't have the votes. They may have to temper their rhetorical flights in order to gain votes. However, the fact that they do this and that Scalia and Thomas don't is what makes the distinction IMO.
5.15.2007 2:41pm
Mark Field (mail):
Damn, misspelled Justice Ginsburg's name. Apologies.
5.15.2007 2:43pm
Nikki:
Admittedly, I haven't had time to follow the links, but your summary almost makes it sound like Sunstein thinks being a visionary is a bad thing. (Which might, in some cases, be true.)
5.15.2007 2:48pm
Ilya Somin:
Whatever philosophy Breyer or Ginsberg may have, their actual opinions are cautious and (pardon the word) conservative. That distinguishes them from Scalia and Thomas, who both allow their grand visions into their opinions (usually their dissents).

I don't know about that. Ginsburg certainly outlined her vision in US v. Virginia and in her dissent in Grutter, among other cases. Breyer's opinions don't discuss the vision in detail, but they are clearly consistent with it and are certainly not always "conservative" in the sense of maintaining the status quo. In any event, one can be a visionary and act on that vision without describing it in detail in opinions.
5.15.2007 2:52pm
Ilya Somin:
your summary almost makes it sound like Sunstein thinks being a visionary is a bad thing. (Which might, in some cases, be true.)

Sunstein's article is ambiguous on this question.
5.15.2007 2:53pm
andy (mail) (www):
why do i get the impression that "visionary" means a "living constitutionalist who will do anything to get his way" in that article?
5.15.2007 3:13pm
Mark Field (mail):

Breyer's opinions don't discuss the vision in detail, but they are clearly consistent with it and are certainly not always "conservative" in the sense of maintaining the status quo.


I meant "conservative" in the sense of "judicially conservative", i.e., narrow. My fault for the ambiguity. But I think that characterization fits Breyer and Ginsburg and is what Sunstein is referring to.
5.15.2007 5:47pm
David M. Nieporent (www):
Of course, describing Ginsburg and Breyer as "careful," or "cautious," or whatever term one chooses, glosses over the fact that liberals and conservatives are not similarly situated, judicially speaking. After the Brennan-Marshall era, the court had swung far in one direction; to be "conservative" is to conserve a very liberal judicial agenda. Ginsburg and Breyer can't be as liberally "visionary" as past judicial liberals because there just isn't much room for them to go to their left, the way there was for the Marshalls and Warrens and Brennans. (I guess they could outright abolish the death penalty rather than chipping away at it and setting up impossible procedural hurdles.)
5.15.2007 8:04pm
Mark Field (mail):
David, I personally wish I could have lived in the world you imagine.
5.15.2007 8:11pm
Scipio_79:
Read this article earlier today on a break from my menial law clerk work. Cass is correct. There are no liberal visionaries on the court. We can thank Reagan and the Bushes for that. As you suggest though, if we had five liberals, I'm sure Ginsberg (ex-ACLU lawyer) would no doubt be a Brennan. As Brennan tellingly said, "With five votes you can do anything around here."
5.15.2007 8:13pm
David M. Nieporent (www):
Hey, Mark, don't feel bad -- I understand the sentiment, even if I don't see how it applies here. For instance, I want to live in the world where Republicans are cutting back on the New Deal and deregulating the economy.
5.16.2007 12:16am
Trevor Morrison (mail):
It's an odd and incomplete mode of measurement that would rank Breyer as one of the Court's two most liberal members.
5.16.2007 12:25pm
Timothy Z:
If I remember my history, Breyer and Ginsburg are the only two appointed by Democratic presidents. Maybe that's why they're called "liberal."
5.17.2007 4:51pm
David.Huberman (mail):
Sunnstein's article limits itself to Justices appointed by Democratic presidents. It, therefore, ignores the most liberal member of the Court, Justice Souter, simply because 41 nominated him. The premise of the article is odd, and the assertion made is never fleshed out with any real evidence.
5.17.2007 7:20pm