Legal Commentary

Now that the Supreme Court term is done, we can tally the boxscore.  Once again, when push came to shove in the biggest cases of the term (Guantanamo detainees, gun rights, the death penalty for child rapists, punitive damages for the Exxon Valdez, and the millionaires' amendment to the campaign finance laws), the Court was maximally divided with Justice Kennedy holding the deciding vote.  Unlike last year (but like most of the preceding decade), the swing Justice split his vote in these big ticket cases, resulting in some wins for the more liberal wing of the court and some wins for the more conservative.  It is almost certain that tomorrow's papers will score the term as a split decision.

In terms of the merits of the decisions, that projected conventional wisdom is obviously correct--this is a Court sharply divided about the substance of the Constitution.  However, in focusing on these real differences, we shouldn't lose sight of the fact that the Justices are firmly in accord on an even more profound question: the role of the judiciary in constitutional cases. 

At most points in U.S. Constitutional history, Justices on one side or the other of the political spectrum have pressed for aggressive judicial policing of government actions that potentially transgress individual freedoms, while Justices on the other side have urged narrower conceptions of individual rights in deference to the Democratic process.  During the 1960s and 1970s, it was, of course, that left that pushed aggressively for the expansion of individual rights and the right that cried foul.

In the last two decades, the right--without changing its rhetoric of restraint--has come to embrace an aggressive judicial role in interpreting and enforcing broad constitutional rights guarantees.  For a partial list of their successes, see Takings cases like Lucas, freedom of association cases like Dale, corporate speech and campaign finance cases, cases that protect religious expression in the public schools, cases constitutionalizing the tort reform agenda, last term's decision in the Seattle Schools case, and today's piece de resistance, Heller.

Intriguingly, however, the political and judicial left have not been quick to abandon that approach.  Instead of retreating to a defensive position and embracing a language of deference, more liberal Justices and commentators have chosen to stand toe-t0-toe with their more conservative colleagues, disputing the particular readings of the Constitution adopted by the Court while continuing to advocate the recognition and expansion of other rights. To a degree that current political and judicial rhetoric masks, all of the current Justices share a conception of the judicial role that gives Courts the right and the obligation to independently assess the meaning of ambiguous constitutional rights guarantees and then follow their own best judgment, letting the chips fall where they may.  The Justices have differed on their vision of the society that the Constitution's rights provisions are designed to protect, not on their vision of the judicial role.

Though I think this point is fairly obvious, I think it is under-reported and crucially important in assessing the dynamics of the current Court.  I think there are manifold implications here, but I'll mention just two.  First, it is almost a foregone conclusion that, at some point in the near future, we will see a neo-Thayerian movement in constitutional commentary, in which some significant subset of academics and other observers will adopt a "pox on both your houses" critique of modern constitutional law.  (That should be fun to watch.)

Most importantly, however, the gap between the reality of constitutional law (in which two groups of judges committed to a broad judicial role battle over the substance of the rights to be jealously protected) and the rhetoric of constitutional politics (in which liberal "activists" battle conservatives committed to "judicial restraint") has grown untenable.  If today's decision in Heller can shake up the common rhetoric and force an acknowledgment of the realities of contemporary constitutional decisionmaking, then perhaps the opinion can do some good after all.