Law or Politics: Is There a Progressive Constitution?

The luminaries on this panel included:
-Judge Boyce Martin, U.S. Court of Appeals for the Sixth Circuit-Judith Resnik, Professor of Law, Yale Law School-Chris Schroeder, Professor of Law and Public Policy Studies, Duke University School of Law-Theodore Shaw, Director-Counsel and President, NAACP Legal Defense and Education Fund, Inc.-Geoffrey Stone, Professor of Law, University of Chicago Law School-Kathleen Sullivan, Professor of Law and Former Dean, Stanford Law School; Quinn Emmanuel Urquhart Oliver & Hedges-Mark Tushnet, Professor of Law, Georgetown University Law Center
Much of this panel focused on what progressives might consider a success from the upcoming confirmation hearings on John Roberts's nomination to the Supreme Court. The hearings might help shape Roberts's view of his own role on the Court. The panelists agreed that it would be unwise to attack him so much that he became alienated.
One difficulty is that no one can pose questions he can't avoid answering if he doesn't want to. The key is to learn to interpret his evasions.
Dean Sullivan emphasized the need to remind the public that constitutional law and politics are two separate dialogues and rhetorics. She reminded the room that progressives' biggest victories happened when they found common cause with moderates. Saenz, which held that California had to give the same welfare benefits to all those on public assistance rather than giving new arrivals benefits equal to whatever they would have been entitled to in their prior home state, was not decided on the grounds of aiding the impoverished but on notions of citizenship. Gay rights have advanced through appeals to notions of liberty and privacy rather than assimilating the marginalized.
The sorts of arguments that appeal to Justices have changed dramatically over time as events alter our sensibilities. The Supreme Court didn't refer to individual dignity until the 1940s, perhaps in reaction to fascism. Prior to that, only states, courts, and the flag had dignity. Constitutional imperatives are necessarily and intentional vague. Activism happens on both sides because the Constitution requires it.
Professor Resnik observed that centralized power is a scary thing. She also noted that state courts have been fertile grounds for new ideas and contemplated judicial term limits.