Slate‘s Dahlia Lithwick notes that with Obama in office liberals are agitating to get a bold, outspoken liberal on the Supreme Court. And not merely a liberal vote, but a liberal voice, an aggressive and eloquent defender of liberalism — in other words, a left-wing Scalia. She writes:
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.
But would it even be possible to come up with a liberal response to Scalia? Liberal jurists don’t have nearly as complete or comprehensive a theory as their conservative counterparts.
Scalia’s views are relatively clear and straightforward: We know what words and sentences mean, and that’s what we use when interpreting the law. And as far as the Constitution goes, we not only know what it means, it’s also always meant the same thing, and it’s always going to.
What’s the liberal alternative to this? We don’t know what words mean, exactly, and sometimes we should use other words outside the law, which may or may not mean what they seem to mean, to help us figure out how to understand legislation? And the Constitution may mean one thing today (although it also may not), but either way it might not mean that tomorrow?
This is, of course, oversimplified and exaggerated — but that’s part of the problem for the left: There’s not really a comprehensive playbook by which liberals interpret the law. The best overarching explanation they can offer, I suspect, is that they believe that Supreme Court justices should be guided by strong ethics and practical considerations rather than hemmed in by rules written hundreds of years ago by men who could not possibly have anticipated the problems of today. But that immediately opens them to the politically potent charge of ignoring the Constitution.
Call me crazy, but somehow I suspect that any contest that pits Supreme Court justices who are in favor of the Constitution versus those who aren’t — however unfair that framing may be — will be handily won by the Scalias of the world. The court of public opinion may not have a well-developed theory of the Constitution, but it knows what it likes — and simple, consistent, and comprehensive explanations of the world are it.