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Liberals Sketch Out Dreams And Limits For Supreme Court

Publication Date: 
May 26, 2009
The Wall Street Journal Online
Jess Bravin

Professor Pamela S. Karlan is quoted in The Wall Street Journal Online in a review of a book she co-authored. Jess Bravin likens Keeping Faith with the Constitution to something on the order of what "Supreme Court Justice Antonin Scalia has done for the right since he joined the court in 1986:"

"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."


"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."


Along with Ms. Karlan, the co-authors of the other new book "Keeping Faith with the Constitution" are two law professors whom President Obama has tapped for various assignments. Goodwin Liu, a University of California, Berkeley, professor who ran the Obama transition at the Education Department, and Christopher Schroeder, a Duke professor whom the president nominated to head the Justice Department's Office of Legal Policy, which oversees judicial nominations.

Published by the American Constitution Society, "Keeping Faith" aims to "set out a liberal and progressive way of understanding how the Constitution has been interpreted and how it ought to be interpreted," Ms. Karlan says.


Prof. Karlan and her co-authors settled on "constitutional fidelity," a term that has crept into the comments of some Obama administration officials. They first considered "constitutional faith," but it sounded "too much like we were praying to the Constitution," she said.