Jeffrey Toobin’s lengthy New Yorker profile of Chief Justice Roberts is instructive — not only for its picture of the Chief Justice himself but also for some insight into what President Obama and today’s progressive legal minds could do over the next two decades.
As Toobin writes, quoting the Chief:
“When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.”
Chief Justice Roberts came into the conservative movement, as so many did, in the early days of the Reagan Revolution. Young conservatives were brought in, and brought up, in the early ’80s, and the dividends of that work continued to pay off a quarter-century later, as Roberts and Justice Alito ascended to the Supreme Court.
Now is the time for progressives to begin that ascendency. As with the Federalist Society, the American Constitution Society is an organization dedicated to helping progress its constitutional values. The constitutional values as seen by ACS are different than — and sometimes opposed to — the values advanced by the Federalists.
But, as we see President Obama consider his first Supreme Court nominee, elections do matter. Now, is our time to reclaim the constitutional values advanced at our best times by the Supreme Court. The distinction between the values the Chief expressed and the values that I see as representing our core constitutional values is perhaps summed up best by the mission of ACS itself:
The American Constitution Society for Law and Policy (ACS) promotes the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. These abiding principles are reflected in the vision of the Constitution’s framers and the wisdom of forward-looking leaders who have shaped our law throughout American history. As a result of their efforts, the Constitution has retained its authority and relevance for each new generation.
In recent years, an activist conservative legal movement has gained influence – eroding these enduring values and presenting the law as a series of sterile abstractions. This new orthodoxy, which threatens to dominate our courts and our laws, does a grave injustice to the American vision.
Now is the chance for President Obama, in big ways and in small, to begin to diminish and then, hopefully, turn around that sterile orthodoxy advanced by Chief Justice Roberts.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found