The Constitutional Moment That Wasn't

Turn back the clock to election day and consider where the president wanted to be by now. By this point, he was expecting to sign a bill transforming Social Security into the keystone of an “ownership society.” He would be awaiting the triumphant election returns approving an Iraqi constitution, confirming the legitimacy of his break with the United Nations and the old world order. And his allies in the Senate would have battered down the filibuster rule, requiring 60 senators for judicial confirmations. The president's claims of a powerful mandate from the 2004 election would have been redeemed in the hard currency of political success.

In this setting, George W. Bush would not have seriously considered nominating John Roberts for the Supreme Court. After all, he had publicly and repeatedly expressed admiration for Clarence Thomas and Antonin Scalia, and there would have been no obstacle to selecting one of them as chief justice.

When the nominee appeared before the Senate Judiciary Committee, his revolutionary intentions would have been absolutely clear. The opinions of Thomas, for example, make it perfectly plain that he repudiates the entire notion of a right to privacy, that he considers the New Deal expansion of the congressional power a "wrong turn" in constitutional history, and that he would give carte blanche to the president in the war on terrorism.

And, with the filibuster rule repealed, there would have been nothing that the Democrats could do to halt the juggernaut. The ascension of Chief Justice Thomas would have signaled the dawn of a great constitutional moment in our history. Under the president's leadership, the American people would have initiated a new constitutional order that had self-consciously repudiated the regime founded by Franklin Delano Roosevelt; the era of Social Security and the United Nations was now dead, and the Court was going to build a new constitutional system based on very different premises.

There would have been nothing unprecedented in this scenario. This was precisely how Roosevelt created the modern constitutional regime in the first place. His eight appointments to the Supreme Court repudiated the laissez-faire constitutionalism of the preceding era and created the activist national government we know today. Indeed, if the New Deal-Great Society regime is going to die, there is a certain propriety in seeing it killed in precisely the same manner in which it was born.

To be sure, Roosevelt had far greater popular support in triggering his constitutional revolution than Bush could ever claim. When he filled his first seat with Justice Hugo Black in 1937, 76 out of 96 senators were New Deal Democrats. The New Deal Court's repudiation of laissez-faire constitutionalism proceeded with the support of majorities in every region of the country. This obviously would not be true today, even if the president's dreams had been fulfilled.

But now it is plain that Bush's transformative ambitions have been shattered beyond all recall. Rather than proclaiming the advent of an ownership society, his television address in New Orleans was used to propose the greatest program of national recovery since the New Deal. In this setting, it would have been entirely appropriate for the Democrats to oppose any nominee who sought to reinforce Justice Thomas' effort to repudiate the basic principles of modern constitutional law.

But John Roberts is no Clarence Thomas. For all his bobbing and weaving, he has explicitly endorsed the right to privacy and clearly stated that he would not try to reverse the New Deal's creation of a powerful national government. He is a conservative in the true sense of the word, respecting precedent and the slow evolutionary processes of case-by-case adjudication.

This is all that liberals like myself can fairly expect from President Bush's nominees. The only way for Democrats to reverse the slow rightward drift in constitutional law is by winning elections. Within the present political context, it is fair to insist that President Bush recognize that he lacks a popular mandate for revolutionary constitutional change. In nominating Roberts, he has indeed made this crucial concession. Rather than oppose the choice, Democrats should use it as a benchmark for the next nominee. Though Roberts might be an appropriate replacement for the right-wing William Rehnquist, the Democrats should insist on a more centrist justice to occupy Sandra Day O'Connor's swing seat.

Bruce Ackerman's latest book, The Failure of the Founding Fathers, will be
published next month by Harvard University Press.

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