O debate da indicação para a Corte Suprema americana

Prof Farlei Martins enviou a seguinte matéria




The New York Times Magazine
May 31, 2009
What’s a Liberal Justice Now?
By JEFFREY ROSEN

When talking about the Supreme Court, Barack Obama has resisted the familiar
ideological categories that have defined our judicial battles for the past
several decades. He has made clear that despite his progressive
inclinations, he is not a 1960s-style, Warren Court liberal — someone who
believes that the justices should boldly define constitutional rights in an
effort to bring about social change. It’s true that Obama has cited Chief
Justice Earl Warren as a judicial ideal, emphasizing that Warren, a former
governor of California, had a sensitive understanding of the real-world
effects of Supreme Court decisions. But at the same time, Obama has
suggested that liberals in the Warren Court mold may have placed too much
trust in the courts and not enough in political activism. “I wondered,” he
writes in his book “The Audacity of Hope,” alluding to Senate battles over
George W. Bush’s court appointments, “if in our reliance on the courts to
vindicate not only our rights but also our values, progressives had lost too
much faith in democracy.”

Likewise, Obama has both rejected and embraced elements of conservative
legal doctrine. The ideological antithesis of Warren Court liberals are
Reagan-era conservatives like Justice Antonin Scalia, who argue that the
Constitution should be “strictly construed” in light of its original
meaning. While expressing respect for aspects of this method, Obama has
rejected it, in the end, as overly rigid and impractical. “I’m not
unsympathetic to Justice Scalia’s position; after all, in many cases the
language of the Constitution is perfectly clear and can be strictly
applied,” he writes in “The Audacity of Hope.” “Ultimately, though, I have
to side with Justice Breyer’s view of the Constitution — that it is not a
static but rather a living document, and must be read in the context of an
ever-changing world.”

By tipping his hat to Breyer, Obama acknowledged one of the two liberal
justices appointed to the court during Bill Clinton’s presidency. (The other
is Ruth Bader Ginsburg.) In different ways and to different degrees, each of
them has championed yet another conception of the judiciary: one in which
the courts, in most cases, should play only a “minimalist” role in America’s
democracy, generally preferring deferential and narrow rulings to broad
ones. This doctrine developed in part as a strategic and defensive response
to the fact that conservative activists on the Supreme Court were
aggressively striking down progressive legislation. But minimalism is also
principled. It urges judges to issue opinions that focus closely on the
particular circumstances of the case at hand, steering clear of sweeping
pronouncements about liberty, equality or justice. By so doing, the theory
goes, the courts can avoid getting too far ahead of the will of the people
and their elected representatives, and preserve judicial legitimacy in the
process.

Yet with minimalism too, Obama’s sympathies have been hard to pin down. One
leading academic minimalist, Cass Sunstein, was an informal adviser to Obama
during the presidential campaign and is now the incoming head of the White
House’s Office of Information and Regulatory Affairs; he is often said to be
someone whom Obama might someday appoint to the Supreme Court. Sunstein has
argued that judges (as well as government regulators) should “prefer nudges
over earthquakes,” gently influencing political debates without trying to
settle them. But Obama has indicated that he himself isn’t a wholehearted
minimalist. When earlier this month he discussed Justice David Souter’s
pending retirement, Obama said that the “quality of empathy, of
understanding and identifying with people’s hopes and struggles” is “an
essential ingredient for arriving at just decisions and outcomes.” In his
announcement today that he intends to nominate Judge Sonia Sotomayor to the
Supreme Court, he spoke of the importance for a justice of knowing “how the
world works, and how ordinary people live.” He seems sympathetic, in other
words, to a more ambitious role for judges than a jurisprudence of the
gentle nudge.

Obama’s ideological elusiveness has perplexed liberal and conservative court
watchers alike. Critics may see his ambiguity as just another example of his
instincts to swaddle ideological divisions in the soothing rhetoric of
bipartisanship and compromise, to reconcile the irreconcilable. Obama,
however, may be looking to synthesize and transcend the established legal
categories — articulating a genuinely new vision for what it means to be a
liberal justice in the 21st century.

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.

In the ensuing years, several scholars, including Jack Balkin, Reva Siegel
and Robert Post — three law professors at Yale — have helped articulate the
position now known as “democratic constitutionalism.” One of its core ideas
is that courts should pursue many of the same social-justice ends that the
Warren Court sought to advance, only using more modest, less uniformly
activist means — always acting in conjunction with progressive political
movements. Unlike the minimalists, the democratic constitutionalists don’t
maintain that courts should always prefer “nudges over earthquakes”; but
unlike Warren Court partisans, they don’t suggest that the courts are always
entitled to have the first (or last) word in promoting social progress.
“Decisions made by legislatures and executive officials about our rights are
just as important” as judicial decisions, if not more so, Balkin and Siegel
write in an introductory essay to “The Constitution in 2020.”

But though the courts ought to take their cues from representatives of the
people — and from popular political movements — judges still have important
work to do in giving convincing legal expression to those sentiments. “In a
democratic society,” Balkin and Siegel write, “courts best perform their
institutional role as partners in a larger dialogue: they respond to popular
visions of the Constitution’s values and help to translate these values into
law.”

In other words, if the Warren Court saw the Constitution as defined
primarily by courts, and if the minimalists see judges as cautious followers
of political movements, the democratic constitutionalists see courts and
political movements as partners, influencing each other and society as a
whole. Courts sometimes act boldly and sometimes cautiously. Constitutional
change ultimately flows from the bottom up, not the top down (which results
in “democratic constitutionalism”), but the courts play an important if
subsidiary role in codifying and extending values that the American people
themselves have come to embrace as fundamental (which results in “democratic
constitutionalism”).

This sort of approach doesn’t (and shouldn’t) always yield liberal results:
during George W. Bush’s presidency, conservative justices working in a
similar mode — as partners with a conservative White House and Congress —
sought to turn the Constitution decisively to the right. But as Balkin and
his colleagues see it, liberal justices are supposed to champion or defer to
the values that they see as expressions of the Constitution’s core
progressive principles — and with a progressive president and Congress, they
think they can succeed. “It’s not a question of being bold or cautious; the
question is: Are you assisting the political branches in promoting
progressive constitutional values like liberty, equality and justice?”
Balkin told me recently.

Not all the conference participants were supportive of this vision. Some
argued that progressives should continue to move more cautiously. But
several scholars expressed frustration with Clinton-era judicial minimalism.
Balkin told me that minimalism was originally defended “as a way of reining
in conservative judicial activism, preserving the judicial gains of recent
years and promoting a sensible, middle-of-the-road, pragmatic politics.” But
the doctrine, he said, “no longer matches up with progressive aspirations:
we have to come up with a positive vision for the future.”

How might democratic constitutionalism work in practice? Consider the issue
of gay marriage. Recently Republican senators have announced that they are
eager to avoid confirming a justice who would vote to recognize a
constitutional right to gay marriage. A democratic constitutionalist,
however, would presumably refrain from protecting gay marriage until a
majority of states had legalized it. William Eskridge, a leading scholar of
same-sex marriage who participated in the Yale conference, told me recently
that, in the near future, the main audience for constitutional arguments on
behalf of gay marriage will be state judges, mostly in the Northeast and on
the Pacific Coast, where citizens are supporting gay marriage in growing
numbers. In Massachusetts, Connecticut and even Iowa, courts have taken the
initiative and put gay marriage on the agenda, he points out, which has
already prompted the legislatures in Massachusetts and Connecticut to
respond.

Eskridge also argues, however, that the U.S. Supreme Court should avoid the
debate until national public opinion has changed enough to ensure that a
Supreme Court decision protecting gay marriage would not be overturned, as
it now might be, by a constitutional amendment defining marriage as between
a man and a woman. “Right now, same-sex marriage is recognized in fewer than
10 states, so this is not a good time for the U.S. Supreme Court to be
jumping in either way — it’s premature,” Eskridge told me. “By 2020, a
majority of states will have recognized gay marriage or civil unions — most
of them by legislative rather than court decisions — and at that point, or
probably earlier, it will all be over and the Supreme Court will require
Mississippi and Arkansas and a handful of others to follow the rest of the
national consensus.”

This argument suggests the method and appeal of democratic
constitutionalism. While a Warren Court liberal might counsel the Supreme
Court to leap ahead of public opinion and provide constitutional protections
for gay marriage today, and while a minimalist might urge state and federal
courts to wait until public opinion has shifted decisively, a democratic
constitutionalist would embrace bold state court decisions but hold back at
the federal level. In tandem with gay-marriage activists, in other words,
state courts can play a role in building a national consensus for gay
marriage that the U.S. Supreme Court may eventually recognize, protect and
enshrine in constitutional terms.

The democratic constitutionalists also offer a different historical account
than do minimalists or Warren Court liberals of how constitutional rights
have actually been expanded in the past — a history that parallels their own
prescription for how constitutional rights ought to be expanded. In a
forthcoming book, “The Will of the People,” Barry Friedman, a law professor
at New York University, tells the story of how the “give-and-take between
the courts and the people” has shaped constitutional law from the founding
fathers’ era to the recent past and present.

Consider the example of women’s equality. As late as 1961, Friedman notes,
the Supreme Court held that the government was permitted to enforce
traditional sex roles — excluding women from jury service, for example, on
the grounds that “woman is still regarded as the center of home and family
life.” But of course the country’s mood was shifting. The new wave of
feminism and the entry of women into the labor market were changing the
popular understanding of women’s equality. In 1972, Congress sent the Equal
Rights Amendment to the states, and for a time ratification seemed likely.
In 1973 a plurality of the Supreme Court argued that sex discrimination was
entitled to the same rigorous constitutional scrutiny as race
discrimination. But the E.R.A. was never ratified, and the Supreme Court
didn’t go as far as the plurality suggested it might. In 1976, the court
ruled that sex discrimination deserved only slightly less constitutional
scrutiny than racial discrimination — a principle that even the E.R.A.’s
opponents claimed to accept.

To a Scalia-style strict constructionist, the Supreme Court decisions
forbidding sex discrimination were presumably mistakes that should be at
most grudgingly tolerated, because they clashed with the original meaning of
the Constitution. To a Clinton-era minimalist, the court was presumably
wrong to leap ahead of popular understandings of women’s rights and should
have waited for the ratification of the E.R.A. To a Warren Court liberal,
the court presumably should have held in the early ’60s that race and sex
discrimination were entitled to the same rigorous constitutional protection.
But to a democratic constitutionalist, the court was right to be cautious
and bold at the same time — waiting until the E.R.A. was proposed but not
waiting for its ratification, on the theory that the court’s decisions could
help push the country in a direction it was already moving and could help
solidify the moral and legal cases for why sex discrimination was wrong.

For critics, the democratic constitutionalist’s metaphor of “dialogue” is
likely to seem vague and unsatisfying, a malleable abstraction that doesn’t
give a clear sense of which larger principles judges are supposed to honor,
or when boldness is preferable to caution. Conservatives will certainly
charge that the new liberals are guilty of the same sins as the old
liberals: urging judges to disguise their policy preferences with ad hoc
legal “principles.” The democratic constitutionalists respond that, although
their method can’t be reduced to scientific precision, it’s far more
respectful of democratic debate — far more willing to let contested issues
be solved by the political branches than by judges — than the leading
liberal or conservative alternatives.

This summer, Obama will have a chance to appoint his first justice to the
Supreme Court, and in the coming years, he may have the opportunity to
appoint others. How likely might his choices be to embrace democratic
constitutionalism? Many possible candidates can be seen as sympathetic to
this emerging school of thought. His first nominee, Judge Sonia Sotomayor,
as well as another judge often mentioned as a possible future candidate,
Judge Diane Wood, have each publicly acknowledged that courts can shape
progressive values by working as partners with legislatures and political
activists. In a 2004 lecture at New York University, “Our 18th-Century
Constitution in a 21st-Century World,” Wood sounded very much like a
democratic constitutionalist when she described the “interactive process” of
constitutional change “that occurs through dialogue among the Supreme Court,
the lower courts, legal scholars and society at large.” Similarly,
Sotomayor, whose past statements will now be heavily scrutinized, in a 1996
article that she co-wrote, based on a speech she herself gave at Suffolk
University Law School in Boston, described “the law as a dynamic system,”
arguing approvingly that “change — sometimes radical change — can and does
occur in a legal system that serves a society whose social policy itself
changes.”

Obama has said that he wants justices who understand that “justice isn’t
about some abstract legal theory or footnote in a casebook; it is also about
how our laws affect the daily realities of people’s lives.” Perhaps he was
saying that rather than define our rights in an ivory tower, the most
successful justices recognize that their decisions are part of a dialogue
with real people — starting at the grass-roots level. Or perhaps Obama’s
constitutional vision is less fully developed than I’ve suggested. It’s
clear, though, that Obama is trying to impose not a hard-and-fast manifesto
for judicial liberalism but a sensibility and a work in progress that seek
to synthesize previous legal thinking into something cohesive and new. If
his nominees prove as ambitious as the president himself, they may well
transform the shape of liberalism.

Jeffrey Rosen, a law professor at George Washington University, is a
frequent contributor to the magazine. He is at work on a biography of Louis
Brandeis.

This article has been revised to reflect the following correction:

Correction: May 30, 2009
An article on Page 50 this weekend about the type of people President Obama
might nominate for the Supreme Court mentions Judge Sonia Sotomayor as a
possible candidate. After the magazine went to press, the president
announced he had chosen Judge Sotomayor to replace Justice David H. Souter.