President Biden is in the process of winnowing his short list on the way to nominating the first Black woman to the Supreme Court. Provided his nominee is approved, we will for the first time have four women on the Court and two Blacks, along with one Latina. It will be the most diverse bench ever, by almost any standard. Unfortunately, we will still have the most ideologically unbalanced court (and perhaps the most out of step with the nation) since the 1930s.
The question is whether such a Court must inevitably worsen the country’s divisions or whether there is any chance at all that it might help heal them. I know that most of my liberal friends would consider as nothing more that a pipe dream the possibility of this Supreme Court contributing anything to such healing. But our ideological polarization has become so toxic that we cannot afford to overlook any plausible pathway toward less divisiveness.
Biden’s appointment will clearly not change the ideological balance of the Court. It will remain a conservative body, and it will often make decisions that liberals, for very good reasons, will find troubling. Biden’s short list, though, contains at least one candidate who would bring to the Court an impressive history of bridging ideological divides while sticking with her principles.
My point here is not to endorse Leondra Kruger, since other potential nominees may prove to be equally qualified on this score. But it is noteworthy that Kruger, now an associate justice on the California supreme court, has been characterized by her Schwarzenegger-appointed chief justice as “a consensus-builder” who has proven “very persuasive in bringing groups together on different legal arcs.”
Any liberal replacement for Justice Breyer, unless she makes her mark solely through vigorous dissents, will only have an influence within the Roberts Court by inviting liberal and conservative justices to come “together on different legal arcs.” Former California governor Jerry Brown put his finger on what might underlie that skill when he explains that he appointed Kruger to the bench because he wanted someone “who could not just make a decision but fit it into the longer intellectual tradition in the law – the wider sweep, the larger view.”
This is where Kruger’s problem-solving temperament and her very considerable intellectual gifts appear to intersect. It is at that intersection that we can imagine Kruger (or another nominee with similar gifts) either influencing — or working effectively with — some of her conservative colleagues on the U.S. Supreme Court.
We have pretty convincing evidence that Chief Justice Roberts does not want to bequeath to history a legacy of having presided over a Court so narrowly partisan that posterity comes to see it simply as an extension of the Republican Party. My read of Justice Barrett is that she, too, might well aspire to a lasting historical legacy that can only be secured intellectually, not by rote ideology. This would mean that there are at least two conservatives who, on the right issues, might choose to take either pragmatic or courageous positions transcending a narrow, blatantly partisan approach. On certain issues, the same can be expected of Justices Gorsuch and Kavanaugh.
As I argued in some detail in Citizens Uniting to Restore Our Democracy, there are genuinely conservative judicial principles and positions that would do far less harm than a narrow or shallow ideological approach would do. Indeed, on some key issues, an authentically conservative approach would provide an opportunity for correcting deeply entrenched and extremely harmful precedents.
If, as seems all but certain, the Court’s conservative majority is soon going to overturn long-settled precedent in abortion and affirmative action law, the least we might hope is that it will include in those decisions a principled explanation of how and under what circumstances the Court should abandon the eminently conservative doctrine of stare decisis. Whether conservative justices include such an explanation in their opinions or not, dissenting liberals can use the occasion to invite similar treatment of other noxious precedents. Two outstanding examples are campaign finance and Second Amendment jurisprudence.
Let’s start with guns. While Justice Barrett’s avowed admiration for Antonin Scalia’s jurisprudence rests on some intellectually rigorous opinions from his pen, his decision in District of Columbia v. Heller is not one of them. Professor (now Justice) Barrett is more than capable of identifying intellectual dishonesty when she encounters it, and Scalia’s disappearing-act treatment of the Second Amendment’s “well-organized militia” clause in Heller could stand as a textbook example of sophistry. If the Court’s conservative majority is going to abandon stare decisis in abortion and affirmative action law, a modicum of intellectual honesty would assign Heller to the same fate. Justice Barrett should be invited to do the honors.
If Scalia’s opinion in Heller is a shining example of results-oriented sophistry, Justice Kennedy’s equally results-driven opinion in Citizens United is too intellectually garbled even to qualify as sophistry. An instance of judicial activism at its democracy-damaging worst, the majority opinion in Citizens United cries out for a serious dose of conservative judicial restraint to replace Kennedy’s opinion with an intellectually honest foundation for campaign finance jurisprudence.
A good place to start would be by inviting the Court to restore the essential outlines of an older First Amendment jurisprudence that has been badly obscured by the judicial rewriting of campaign finance law. In March of 1919, Justice Oliver Wendell Holmes wrote the majority opinion in Schenck v. United States, upholding a conviction under the war-fevered Espionage Act of 1917. But in November of 1919, after eight months of intense soul searching and conversation with friends like Felix Frankfurter and Louis Brandeis, Holmes wrote a dissent in Abrams v. United States, objecting to another conviction under the Espionage Act. Seeming almost to be describing his own thought processes that year, Holmes provided what would become the core principle of free speech law until its overshadowing in our time by an obsession with purely individual concerns:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.
I’m not aware of a more eloquent articulation of the kind of intellectual courage that honest people (including judges) must bring to bear in the search for principles to guide our lives together.
Daniel Kemmis is the author of Citizens Uniting to Restore Our Democracy.