CASS SUNSTEIN'S CONSTITUTIONAL TIME MACHINE. In an excellent post today on The New Republic's Open University blog, the ever-prolific Cass Sunstein skips around the recent past and future to remind us of just how much the Supreme Court has changed. First he goes back, then forward in time to point out how our view of the politics of the Court ignores just conservative today's court is by the standards of a few decades ago (the whole piece is worth reading):
Imagine that by 2030, Justices Antonin Scalia and Clarence Thomas have both resigned, and their successors are much more liberal than anyone serving now on the Court -- far to the left of the Court's supposed liberal wing. The new justices believe that the death penalty is always unconstitutional. They argue that the Constitution creates a right to education and very possibly to welfare and housing as well. They think that affirmative action programs are fine, even if they operate as rigid quota systems. They are not merely committed to a right to choose abortion; they say that the Constitution requires government to fund abortions for poor women, even when those abortions are not medically necessary...
Does this Supreme Court of 2030 seem utterly fantastic and unimaginable -- a conservative's worst nightmare, a liberal's wildest dream? If so, think again. The court just described is no fantasy. In essence, it is the Supreme Court of 1980... The court of 1980, so far to the left of the court of 2007, was itself described as a conservative court. After all, it included five Republican appointees... who generally rejected the liberal rulings of their predecessors on the Warren Court... What was once conservative is now centrist. What was once on the extreme right -- so extreme that it was not represented on the Court at all -- is now merely conservative (Scalia and Thomas). What was once on the left no longer exists.
Current thinking certainly suggests the situation is hopeless. Linda Greenhouse's recent
New York Times piece compared liberals to prisoners chained to a wall and portrayed them as reduced to trying to teach law students to change the court decades in the future. Yet, as I see it, things may not be as bad as all that. After all, replacing even one of the Court's five conservatives with a real liberal would move the court farther left than it has been in the last 15 years.
The confirmation of Justice Alito suggests that, if Democrats had even a small majority in the Senate, a Democratic president would have little trouble confirming even a very liberal nominee. Sunstein's thought experiment reminds us that the Supreme Court changes a lot faster and a lot more than we give it credit for and that we shouldn't expect the court a few decades from now to play by the rules it obeys today.