Just as a coalition of religious-right activists was finishing its two-day call for the impeachment of dozens of judges last Friday, a court-minded conference of a decidedly different tone was beginning in New Haven, Connecticut. Where one gathering seemed to signal an ending -- the culmination of an increasingly provocative conservative attack on the independent judiciary -- the other was intended to be a beginning, the first stage of a conversation about how liberals interact with the courts and push policy forward.
The occasion was a weekend-long Yale Law School conference on “The Constitution in 2020,” sponsored by the American Constitution Society (ACS), the Center for American Progress (CAP), and the Open Society Institute (OSI). The questions at hand: how the country's founding document could and should be interpreted, and how to institute that vision. It is not an abstract argument -- nor a settled one.
Should litigation take a backseat to legislation, as many panelists proposed? Should judicial activism be encouraged? Or judicial restraint? Over hours of discussion alternating between dense legalism and lay politics, some of the liberal movement's top legal scholars and activists argued whether the Constitution's emphasis on equality or liberty should predominate; how to restore public faith in an aspirational, activist government; and how to reinvigorate the more progressive traits of the Constitution. In an airy auditorium studded with stained-glass seals from each of the 50 states, some called for an embrace of federalism.
The conference launched a multiyear “Constitution in the 21st Century” project for ACS, the five-year-old progressive legal organization intended as a counterweight to the Federalist Society. Project co-chair Dawn Johnsen, a law professor at Indiana University, explained it to me as an opportunity to “think about overriding principles that we want to promote down the line” and how to integrate the legal basis for liberal goals with effective political strategy. A similar discourse among conservatives in the 1970s and 1980s led to a series of documents put out by Edwin Meese's Justice Department toward the end of the Reagan administration that Johnsen, a former acting assistant attorney general under Bill Clinton, discovered after leaving office.
The “Meese memos” were laid out as instructions to government attorneys on how to interpret and administer law on a broad range of issues, from church-state interfaces to criminal justice. They codified the legal theories that underlay the conservative movement's refrain of “interpreting the law as it is,” the ideas of “original intent” and “strict construction.”
One of the key documents, “The Constitution in 2000,” laid out crucial legal questions that seemed likely to come before the Court before the millennium closed out. Many of those cases did come up -- and many were decided as the compendium's authors hoped.
The Meese memos presented its doctrines as certitudes, a perception that the New Haven conferees are committed to challenging. The conservative, federalist successes of the '90s came not because the legal theories or the particular plaintiffs were so compelling, Johnsen believes, but because “they just had the justices -- that's all it was.” Original intent “was not a principle; it was a means to an end,” argued famed lawyer David Boies. “We need to have a construct that is simple enough to understand, that can be conveyed politically, so that people can take the same comfort from that; it can be the same rallying point as original intent.”
But that pat doctrine looks like a distant goal. The disagreements broached in the conference were constructive but not conclusive. Perhaps the most recurring debate was how liberals should use the courts -- a question keyed off by University of Chicago law professor Cass R. Sunstein on the first night with a declaration that the way forward is “not properly signaled by decisions like Roe against Wade and Goodridge [the court ruling directing Massachusetts to allow same-sex marriage]” and that it is time to “demote Earl Warren, president under Eisenhower” as the model of an activist, liberal jurist. NYU's Burt Neuborne (who wrote on the topic for the Prospect in January) declared that his “hope is that by 2020 when we're here we will have reduced our dependence on courts.”
This emphasis was pronounced enough that, by the end of the second day, Stanford's Kathleen Sullivan felt compelled to “try to insert a little controversy into this by saying courts are good. … I want to fight that impulse, I want to actually encourage young people not to write off courts.” The consensus seemed to be not to write off courts but to keep in mind that they “are and should be conservative, not in a right-left sense, but in conserving,” as Second Circuit Judge Guido Calabresi said -- and that any successful court victory that is not paired with a successful public-opinion campaign will leave progressives “trapped in a no-man's land between judicial success and an inability to persuade,” as Neuborne put it.
That goal of achieving success through grassroots and legislative victory, as much as through judicial victory, is not a new concept, but it is something that has often been difficult to pursue. “Interest groups have been forced to be defensive for quite a while now,” says ACS executive director Lisa Brown. “They don't have the luxury when they're in the middle of litigating of standing back and thinking about the more affirmative cases that can be made and thinking ten or twenty years ahead.” The next stage of ACS's 21st-century project will see the development of issue groups and information clearinghouses designed to transmit relevant legal scholarship and rhetorically effective methods to organizations and politicians sorely in need of the help. “It's not meant to be just an ivory tower approach,” Brown explains. “The whole purpose of this is that it's going to be relevant.”
But although that process will pick up steam with ACS's third national convention this July, the pressures of the immediate political situation will have to be dealt with long before the project's conclusion.
“This is a much longer-term exercise than what progressives need to do in the short term to gain an idea advantage, a political advantage,” said John Podesta, president of CAP, one of the conference's sponsors. The increasing radicalism of those who attend that other conference, and its congressional supporters, threaten to fundamentally change the structure of the independent judiciary, warned some panelists. And even barring such a dramatic change, the looming “nuclear option” could provide Republicans with unilateral, absolute power over future nominations and make the courts of the next 20 years even more hostile to liberal policies. “If we can't stop them now,” former Judiciary Committee counsel Jeff Berman cautioned, “we might as well start talking about the Constitution in 2040.”
Jeffrey Dubner is the Prospect's associate web editor.