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What’s A Liberal Justice Now?

Publication Date: 
May 31, 2009
The New York Times Magazine
Jeffrey Rosen

Professor Pamela S. Karlan is mentioned in an article in The New York Times Magazine about what constitutes a liberal Supreme Court Justice in light of President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court:

In “The Audacity of Hope,” Obama calls for “a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had.” As it happens, the same metaphor — of conversation or dialogue — is now being elaborated and made more concrete in a legal context by some of the country’s most notable progressive legal scholars. They call themselves “democratic constitutionalists.” And they and Obama seem to be arguing along similar lines, suggesting that the courts should neither issue rarefied edicts from on high nor passively defer to the political branches but instead participate in a “dialogue” with Congress, the president and the American public to define and protect constitutional values. Although this emerging paradigm is not yet fully developed, it has the potential to transform what we mean when we talk about liberalism on the Supreme Court.

If this new understanding of legal liberalism can be traced back to a single moment, it was in April 2005, when the American Constitution Society and other progressive groups sponsored a conference at Yale Law School called “The Constitution in 2020.” Taking as their model a white paper produced by the Reagan Justice Department in 1988 called “The Constitution in the Year 2000,” the organizers set out to gather together a group of scholars to define a progressive constitutional agenda for the coming century. (A book inspired by the conference, “The Constitution in 2020,” has just been published.) The conference brought to New Haven many of the leading liberal scholars in the country, including several who in recent weeks have been mentioned in connection with Obama: Pam Karlan, a law professor at Stanford; Harold Koh, of Yale Law School; and Sunstein, then a professor at the University of Chicago Law School.

Like the Babylonians in exile, the participants at the conference debated how best to return to the land of political relevance. Their favored judges had been shut out of consideration not only during Republican presidencies but also, to some extent, during the Clinton era, when political realities and the president’s ideological inclinations resulted in fairly moderate appointees to the federal courts. At the same time, the conference participants agreed that a return to the Warren Court liberalism of the ’60s would be politically impractical as well as doctrinally undesirable. They also viewed Warren Court liberalism as too backward-looking to galvanize young progressives today. They sought to nurture a new generation of legal liberals who would pose an alternative to the conservative strict-constructionist lawyers who emerged from the Federalist Society to dominate the federal courts during the Reagan, Bush 41 and Bush 43 eras.