Yesterday, I wrote an article urging Obama to put a strong liberal voice on the Court. Matt Yglesias responds and asks what a "real liberal" would look like. He highlights my criticism of Elana Kagan's record on civil liberties and executive power:
That's a valid concern (and see Glenn Greenwald for outrage at great length on the subject) but it actually strikes me as a quite different thing than the concern that Kagan isn’t a “real liberal” in the Marshall tradition. You could put an “everything is unconstitutional” libertarian in the Randy Barnett mold on the court and you’d keep executive power constrained while moving the court way to the right on economic issues. Greenwald might prefer that to Kagan, I would not.
Which is just to say that I think we should separate out the question of should Obama appoint a nominee who takes a skeptical view of claims of presidential power (sounds good to me, through probably less good to the president) from the question of whether Obama, or progressive political activists more generally, should attempt some kind of revival of the overall Marshall tradition of jurisprudence.
I think that Matt and I understand the Marshall/Brennan/Douglas legacy somewhat differently. I too am skeptical of the value of court-mandated social welfare provisions -- but I don't see this as a major part of the jurisprudence of these judges. About as far as the Warren Court ever went along those lines was Shapiro v. Thompson, which didn't adduce the right to welfare benefits per se, but just held (based partly on a constitutional right to travel that dates back to the pre-Civil War era) that if a state did offer such benefits it couldn't discriminate based on how long otherwise eligible recipients had resided in the state.
There were other cases where Brennan, Marshall, and Douglas questioned violations of privacy as a condition of welfare benefits, but this again was as much about "negative" as "positive" rights. I suppose you could also cite what I regard as Marshall's greatest opinion -- his dissent from the Court's upholding of Texas' grossly inequitable school-funding system in San Antonio v. Rodriguez -- which claimed a general right to education. But given American practices for the last century, this is hardly radical. And as a practical matter, a holding that if the state chooses to provided public education it must do so on equal terms would have the same effect (even during the late Jim Crow period business interests wouldn't allow states to completely close public school systems). For the most part, the "welfare liberalism" of Brennan and Marshall was very modest and tentative.
Rather, what I see as the core of Brennan/Marshall/Douglas tradition is 1) a much more consistent pro-civil libertarian record than any of the Court's current liberals (which is highly relevant to the Karlan/Kagan distinction), and 2) more skepticism about the claims of business in civil rights, administrative law, and civil litigation cases than the Chamber of Commerce-endorsed more liberal wing of the Court currently shows. I would see this as very different than a futile effort to mandate European-style welfare policies through judicial fiat, as Matt seems to imply.
--Scott Lemieux
