Janus of Jurisprudence

The source: “The Myth of the Balanced Court” by Cass R. Sunstein, in ­American Prospect, Sept. ­2007.

The oldest and longest-serving justice on the U.­S. Supreme Court, John Paul Stevens, is considered its most ­liberal member. In 1980, he was the institution’s middle-of-the-roader, squarely in the ideological center of the nine jus­tices. In ­the intervening decades, “Stevens hasn’t much changed,” writes ­Cass R. Sunstein, a law professor at the University of Chicago. What ­has changed is the left wing of the court. It has ­vanished.

Justices Antonin Scalia and Clarence Thomas are the ­vis­ionaries of today, Sunstein says. Justices William Brennan and Thurgood ­Marshall once looked ahead and believed that the Constitution banned the ­death penalty in all circumstances and created a right to education, as well as ­abortion. Today, Scalia and Thomas envision a nation where ­affirmative action laws have been wiped off the books, campaign ­finance restrictions have been lifted, and abortions are ­rare.

Justice Anthony Kennedy, nomin­ated to the Court by ­Presi­dent Ronald Reagan, now casts the “swing” vote in ­decisions that split left from right. Considering Ken­nedy to be the moder­ate, rather than Stevens, has important consequences ­both for constitu­tional law and public debate. “People’s sense ­of constitutional possibilities, and of what counts as sensible or, instead, extreme and unthinkable, shifts dramatically,” according to ­Sunstein.

Marshall’s and Brennan’s “clear, bold” writings against restricting the ability of citizens to bring suit in federal courts, or in favor of restrictions on campaign contributions, “pressed the Court toward moderation on those subjects.” These liberals, in their “bold” writings on controversial legal issues, were not necessarily correct, Sunstein writes. The Supreme Court is at its best when it proceeds cautiously ­and incrementally, with respect for the elected branches of government. “Marshall and Brennan, no less than Scalia and Thomas, tried to use ­the Constitution to impose a contestable political vision on the ­nation.”

The preferable route is to work within established categories and to move only with great reluc­tance to strike down acts of ­elected of­ficials, above all congressional legislation. From 1984 to 2000, the Court overruled a surprisingly large number of precedents, more than 40, rejecting the law as it was unde­rstood in ­1980.

What may be most remarkable about the judicial revolution, in addition to how “stunningly suc­cess­ful” it has been, Sunstein says, is “that most ­people have not even noticed ­it.”