Liberals Sketch Out Dreams and Limits for Supreme Court

[EV_Ares]

Many liberals want President Barack Obama to name a Supreme Court justice who can define a vision for the law in the 21st century, much as Justice Antonin Scalia has done for the right since he joined the court in 1986.

The Constitution in 2020
Edited by Jack Balkin and Reva Siegel (Oxford University Press, 368 pages, $74 hardback/$19.95 paperback)

Until now, no manifesto has set forth what that vision might be. But in two new books, scholars with ties to the Obama administration suggest how they would move from defending liberal precedents of the mid-20th century to advancing new constitutional approaches. "For far too long, liberals have been kind of apologetic and on the defensive, and we oughtn't to be," says Pamela Karlan, a Stanford law professor who worked on both books and is sometimes mentioned as a potential Supreme Court nominee.

The books argue that rather than simply being a fixed legal code, the Constitution also represents ideals that each generation has a duty to apply in its own era. Some constitutional phrases allow little argument -- that senators be at least 30 years old -- but others, they say, invite continual evolution, such as "due process."

The liberal vision won't happen right away, with conservative justices holding the edge on the Supreme Court and none appearing likely to step down soon. The books also recognize limits on how far courts can go.

"A lot of the things that courts can do, they've already done," says Ms. Karlan. "Things like 'one person, one vote,' or the criminal procedure revolution," were decided decades ago, and today liberals mainly seek to defend those precedents from conservative challenges. Today, liberal policies are moving toward "affirmative rights" to health care or housing, she says, and those are "things courts aren't that good at."

One of the books, "The Constitution in 2020," harkens back to a document from the Reagan-era Justice Department called "The Constitution in the Year 2000," which codified the conservative critique of liberal rulings going back to the New Deal. The other new book is "Keeping Faith With the Constitution."

For much of the 20th century, the Supreme Court found the Constitution in concert with major liberal goals. In the late 1930s, it upheld New Deal legislation over conservative arguments that the Constitution prohibited government intervention in the marketplace. In the 1950s and '60s, the justices invalidated racially discriminatory laws and imposed rules to deter police misconduct.

Keeping Faith With the Constitution
By Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder (American Constitution Society, 164 pages, Free download here.)

In the 1980s, conservatives popularized "originalism," which asserts that the only legitimate way to apply the Constitution is as 18th century Americans would have understood the text. Liberal approaches -- treating the Constitution as a "living document," as Mr. Obama suggests -- invite judges to cloak their personal views as law, they argue.

entire article @ link: http://online.wsj.com/article/SB124328690467052025.html