The Case for a Constitutional Visionary

The conventional wisdom is that President Obama’s nominee to replace retiring Justice John Paul Stevens won’t change the Supreme Court much, since Justice Stevens is part of the Court’s progressive wing and President Obama’s choice is likely to be of a similar stripe. That thinking is dead wrong. The next nominee could profoundly change the Court’s jurisprudence in ways that defy conservative-liberal labels and have a lasting impact.

The next nominee must, of course, be well qualified and committed to the Constitutional values of liberty, fairness, and equal justice for all. She or he must be someone who approaches each case with an open mind and an unbiased eye. But within those bedrock parameters, there is room for watershed change. President Obama has the opportunity to nominate a constitutional visionary—a justice who charts new pathways, crafted for America in the 21st century.

A constitutional visionary is someone who sees the ways in which our society is evolving and articulates a jurisprudence—sometimes over the course of years or decades—that applies the Constitution’s text and principles to engage that new reality. The term is ideologically neutral, with past examples coming from both parties’ nominees.

Consider, for example, Justice Hugo Black, a former Alabama Senator (and, remarkably, a former Ku Klux Klan member) appointed by President Roosevelt in 1937. Serving on the Court through the Great Depression, World War II, and the Civil Rights Movement, Black saw that many of the threats to liberty and freedom that so troubled the Framers of the Constitution—suppression of free speech, government violence and oppression, taxation without representation, denial of due process and equal justice—were playing out most fiercely within states and localities.

Justice Black saw, too, that the Civil War Amendments to the Constitution, and particularly the 14th, were intended by their authors to transform the relationship between state and federal governments, forging a more cohesive and more equal nation, with the same basic rights and responsibilities for all. Applying that history to the contemporary context, Black articulated the “incorporation doctrine,” under which almost all of the Bill of Rights restrain not only the Federal government—as was largely the case when Black first joined the Court—but also state and local governments, via the 14th Amendment.

Though Black was not significantly more liberal or conservative than his colleagues on the Vinson and Warren Courts, his constitutional vision transformed how the Constitution is lived by everyday Americans, in ways that transcend ideology. The incorporation doctrine is accepted in all but the most extremist legal and political circles. It protects the free speech rights of Americans—be they left, right, or center—against censorship by cities, towns, counties and states, for example. And it is used by conservatives to assert property and gun rights, as well as by progressives to assert privacy rights and the rights of people accused of crimes.

Other constitutional visionaries have influenced the court and nation more subtly, yet in important and lasting ways. Justice Sandra Day O’Connor, for example, a former state legislator and judge, advanced a theory of “new federalism” popular with conservatives that has hindered the federal government’s efforts to enforce civil rights and other laws against state and local governments—reigniting a trend that cuts against Justice Black’s jurisprudence.

Justice Harry Blackmun, for whom I worked as a law clerk, articulated a privacy jurisprudence that (however haggard) continues to protect most women’s intimate reproductive choices, and was vindicated in the Court’s Lawrence decision protecting the privacy of consensual sexual relations. Lawrence overturned Bowers v. Hardwick, in which Justice Blackmun wrote one of his most eloquent dissents.

As a former constitutional law professor and President of the Harvard Law Review, Mr. Obama is as qualified as any President in our history to select and nominate a constitutional visionary for the coming era. Yet the rancorous policies of today’s Senate, looming mid-term elections, and an ambitious legislative agenda will militate toward a politically “safe” choice, with incrementalist and largely unarticulated views.

That would be a mistake—first, Republican leaders have already made clear that they will attack, and may filibuster, whoever the President nominates. More importantly, though, the challenges of today and tomorrow—preserving privacy in the age of Facebook, YouTube, and ubiquitous outdoor surveillance cameras; protecting equality in an era of genetic coding and engineering; ensuring freedom and security at a time of growing corporate power and transborder terrorism—demand fresh ideas and perspectives.

Even a transformative nominee won’t change the nine-member Supreme Court’s jurisprudence overnight, and it shouldn’t. But the vetting of a broad range of ideas and approaches, each committed to fairness, equal justice, and our Constitution, is what our Court and the country need.