I’m not going to speculate (at least in this post) on who President Obama will nominate in a few weeks, but I am going to talk about  two pieces discussing the Court itself and how decisions are made. The first by Geoffrey R. Stone in the New York Times, the second posted by William Forbath  this weekend on Politico’s Arena in response to Stone.

Stone begins

AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.

As both Stone and Forbath remind us, the Constitution is an 18th Century document.  I believe that the vague yet sweeping language is why the Constitution is still a living and useful document.  The question addressed by Stone and Forbath is how one interprets it to meet the modern age. Neither thinks much of the way the current conservative majority uses the constitution.

Stone

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

Forbath

… Conservative judges use history to claim that when they strike down a law, they are merely applying the “original understanding” or “intentions” of the framers of the Constitution. This is bunk. But it is reassuring. It enables conservatives on and off the Court to claim that what liberal judges do is something different and illegitimate. Liberals are “judicial activists.” When liberal judges strike down a law, they are “making up” new law. They are “betraying” the Founding Fathers. This is also bunk. Conservative and liberal judges alike bring their own present-day values and convictions to bear on interpreting and applying the Constitution. Conservatives are wrong to deny it. But they are right that appealing to history and “keeping faith with the past” is an indispensable part of our constitutional tradition – and one that helps mobilize popular support behind the constitutional commitments a judge, lawmaker, or citizen may prize. So, liberals need to get a better handle on the way to use history.

So what should the role of history be?  And how can liberal justices use it more to their advantage?  Stone points out that

So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.

Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantanamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.

Where Forbath disagrees is with Stone’s reliance on James Madison and original intent.  He points out

So, judges today must attend to the text the framers gave us, the general principles it enshrines, the Amendments Americans have added, and the meaning and range of applications generations of judges, lawmakers and citizens have poured into them. And judges must consult their own conscience and experience as they sift through these materials that history provides and decide how best to keep faith with the past.

As long as they hew to this honest approach to history, liberals often draw compelling lessons from it. But lately, liberals are being drawn into the fictions and falsities of the “framers’ intentions” in order to sound just as “true” to the Founding Fathers as our conservative foes. When we liberals play the “framers’ intentions” game, however, we end up sounding silly and disingenuous.

Take for example constitutional scholar Geoffrey Stone’s important op-ed piece in last Wednesday’s New York Times. Looking ahead to President Obama’s soon-to-be-announced nomination of a new Supreme Court Justice, Stone urges “a frank discussion .on the proper role of judges in our constitutional system.” He laments that for thirty years or so, conservatives have dominated the national conversation about the Constitution and the Court, and he rightly points out that they have done so “in a highly misleading way” by claiming that conservative judges just “apply” the Constitution by enforcing the “framers’ intentions.” Stone goes on to contrast the kinds of laws that liberal judges strike down – laws that burden racial minorities, the poor and the powerless, with laws that conservative judges strike down – laws that “disadvantage corporations, business interests, the wealthy and other powerful interests in society.” And he suggests that liberal judges surely have a wiser vision of the role of judges in a constitutional democracy, since they wield the power of judicial review to safeguard people most at risk of being shortchanged in the ordinary political process, while the conservative judges conjure up new safeguards for those who already enjoy ample sway in the political arena.

So far so good. But along the way, Stone proves unable to resist the siren song of “framers’ intentions.” He tries to turn the table on the conservatives. He goes to some lengths trying to cloak liberal constitutional values and commitments in the mantle of James Madison’s “intentions.” Stone has dressed up James Madison as a Great Society liberal. Says Stone, the “intentions of people like Madison who forged the American constitutional system” was to safeguard minorities like African-Americans, undocumented immigrants and the Guantanamo detainees against the tyranny of the majority. That is what liberal judges do. Conservatives, Stone declares, stand Madison’s “idea on its head.” They wield judicial review to overturn affirmative action, gun control, and restrictions on corporate speech; they “tend to exercise. judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society.”

Stone’s James Madison is bunk too. The real James Madison was largely hostile to any kind of judicial review. More important: while Madison did craft the Constitution to safeguard minority rights against the tyranny of the majority, and while Madison, the wealthy slaveholder, was concerned about protecting religious minorities, he had no concern for the rights of “racial minorities,” and it was mainly the rights of the wealthy over against the majority of Americans of modest means that Madison hoped to protect! Thus, the conservatives on today’s Court have about as good a claim to Madison’s mantle as we liberals do.

I think Forbath is right about history and original intent.  As long as we argue about which view of original intent is correct, liberals will never prevail.  We need to move on to take into about all the history since 1787.  Forbath writes

History is on our side; but that has much less to do with James Madison and much more to do with the bloodshed of the Civil War and the Civil War and Reconstruction Amendments that made the Constitution a charter of equal rights for all Americans, including the former slaves. It was the Republicans of the Reconstruction Era, the New Dealers, the Civil Rights Movement, and the twentieth-century Court who gradually enlarged Madison’s original conception of minority rights and majority tyranny to make it a safeguard for the poor and vulnerable.

We do need “a frank discussion” on the Constitution and the proper role of judges, and we can’t be half-frank about it. There are good arguments why the liberals’ account is better. Stone offers a few. But wrapping ourselves in the mantle of the 18th century framers’ intentions as he tries to do is not one. Our constitutional commitments have emerged over two centuries of tumultuous change. The arc of constitutional history generally has bent toward a more inclusive and generous vision of rights-bearing membership in We, the People. Conservatives are bending it back. The 18th century framers might have agreed with them; but the Civil War, the Reconstruction Amendments, and much else have intervened in the mean time; and, in any case, the choice – about how to keep faith with our constitutional past – is ours.

We need a Supreme Court with Justices that are willing to grow, to learn and to change with the times.  President Obama could do worse that nominate someone in the Earl Warren or Justice Powell or Justice Brennan mold.  Those were men who learned to consider cases on their merits, who understood the need to connect decisions to real ordinary people.  They were men with empathy.