Dahlia Lithwick offers an interesting observation about the current liberal justices of the Supreme Court and the sort of justice various liberals have said that Obama needs to appoint when a vacancy occurs. But in the midst of it all, she offers this observation that makes a lot of sense – but which is also a telling point about the “great” liberal justices of generations past.

It's sometimes said that in addition to being voiceless, or at least librarian-voiced, the court's liberals cannot see big. Thus we often hear that the court's liberals lack a revelatory constitutional vision. Sunstein, for instance, once lamented the "absence of anything like a heroic vision on the court's left." He writes longingly of Marshall and Brennan as "the Court's visionaries, offering a large-scale sense of where constitutional law should move." What Scalia has always done so much more effectively than anyone else at the court is sell his view of originalism and textualism. He has a coherent interpretive rulebook to which he almost always adheres. Oh, and he can explain it in 60 seconds on 60 Minutes.

Yes, it is “the vision thing” – but in the course of explaining another point about the vision of the three justices she shows the fundamental difference between a Scalia and a Brennan or a Thurgood Marshall.

Whether they persuade by the force of their personality, a la Brennan; or their life story, a la Marshall; or their browbeating analysis, a la Scalia, the big justices tend to be the ones with the big ideas.

But consider the basis upon which the three justices mentioned persuade others. In the case of Brennan, it was his personality. In the case of Marshall, it was his biography. In the case of Scalia, though, it is the expounding of rigorous legal reasoning grounded in the text of the Constitution. In effect, Lithwick is calling for a move away from the founding document, with decisions instead being based upon the whims and preferences of the men (or women) on the bench. So much for being a nation of laws.

Posted by: Greg at 01:49 PM | No Comments | Add Comment
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