Hertz or Avis? Progressives' Quest to Reclaim the Constitution and the Courts (original) (raw)

2011, Social Science Research Network

detailing reports produced by Reagan's Justice Department specifying existing Supreme Court precedents considered by the authors to have been wrongly decided, and outlining the direction of corrective decisions). On May 11, 2001, in an unprecedented move to highlight his political investment in judicial nominations, President Bush introduced his first eleven appellate nominees to the media as a group in person. Neil A. Lewis, Bush to 1203 20111 OHIO STATE LA WJOURNAL Third, the composition of the federal judiciary has a pronounced right-ofcenter tilt, which is likely to persist for the foreseeable future. Even if President Obama wins a second term, the chances appear better than even that all five members of the current Republican majority will be on the Court when his successor takes office in January 2017. During his first two years in office, with a 60-40 Democratic majority in the Senate, Obama was able to moderate the substantial Republican imbalance at the federal appellate level left by President George W. Bush. In January 2009, nine of the thirteen circuits had Republican majorities, two were even, and two (the Second and Ninth) had Democratic majorities. Two and one-half years later, Democrats held majorities on three additional circuits (the Third, Fourth, and Federal) and the circuits on which Republicans outnumbered Democrats had shrunk from nine to seven. 4 But of course, going forward, Obama has a much slimmer Democratic Senate majority in the current Congress. In 2012, the chances appear better than even that Republicans will win the Senate. In sum, any progressive agenda aimed at achieving actual outcomes in the federal judiciary will have to (a) focus significantly on preserving established principles and precedents essential for important progressive priorities, and (b) attempt, where possible, to frame issues in terms that resonate with some members of the conservative majorities on the judiciary, and especially, of course, on the Supreme Court. Fourth, in the last year, conservatives have, at least for the moment, shifted sharply rightward the thrust of their constitutional agenda and intensified the aggressiveness with which they are pursuing it. They are no longer attacking only, or mainly, the Warren Court, and incanting that "activist" justices will create new "rights" important mainly to minorities or liberal "elites." The health reform challenges take dead aim at the New Deal/Carolene Products footnote four regime of judicial deference to legislatures on economic and social regulation. 5 Mirroring the Tea Party insurrection within Republican political ranks, libertarian legal theorists and advocates, who had been marginalized for over a quarter century, have seized control of the conservative and Republican constitutional agendas. Leading Republican politicians are emphasizing the need for courts that will check "government overreach" (code for alleged