I clicked over to read Scott Lemieux’s article “The Case for a Real Liberal on the Court” with interest yesterday. Reviving the Marshall/Brennan-style welfare rights judicial liberalism is something progressives like to talk about, but I can never quite tell if anyone actually thinks it’s a good idea. But after actually reading the piece it’s not clear to me that he thinks it’s a good idea. Rather, he doesn’t like Elana Kagan’s record on civil liberties:
Conservative Republicans now dominate the Court although the Democratic Party has won the popular vote in five of the last nine presidential elections. And as reflected by the fact that a moderate Republican like Stevens became the leader of the Court’s liberal wing, the nation’s highest tribunal completely lacks a liberal in the mold of Douglas, Thurgood Marshall, or William Brennan. Presumptive front-runner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values.
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.