The Constitution at a Crossroads: The Ideological Battle over the Meaning of the Constitution

March 14, 2012
Guest Post

By Doug Kendall, President, Constitutional Accountability Center

Lyle Denniston recently described “the tendency of the ‘Roberts Court’ to take on the broadest kind of controversy in cases brought to it.” From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases about to be argued, in which the Court decided to hear just about every claim presented to it -- including claims unanimously rejected by the lower courts -- and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important political controversies of our day.

Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. That is the focus of The Constitution at a Crossroads: The Ideological Battle over the Meaning of the Constitution, an attempt by Constitutional Accountability Center (CAC) to map and describe the ideological battlegrounds on the Roberts Court. We began to rollout the Crossroads project today with a media teleconference featuring Tom Perriello (former Member of Congress and current head of Center for American Progress Action Fund) and myself (you can listen to our remarks here).

CAC will be releasing Crossroads chapter-by-chapter over the next several months, beginning today with the release of three chapters on the powers of the federal government, which helps set the stage for the ACA argument later this month. Our plan is to release a dozen or so more chapters over the course of the spring, as the Court races toward the end of its October 2011 Term. After the Court completes its work, we will spend the summer editing, revising and compiling Crossroads into a single document for release in the early fall, timed to coincide with the celebration of the 225th Anniversary of the ratification of the Constitution and  the opening of the Court’s October 2012 Term. Because Crossroads will be released over time and then revised and edited after the Court ends its Term in June, we very much welcome comments and criticisms from ACS members as we shape the final product.

Crossroads is not the first attempt to map the ideological divisions on the Supreme Court. In 1988, in the wake of the decisive defeat of the nomination of Robert Bork to the Supreme Court and in the run-up to an election that seemed destined to determine the direction of the Court for a generation to come, the Reagan Justice Department released a series of reports that highlighted “substantial differences of opinion over the judicial role in contemporary society.” The most famous of these reports, entitled The Constitution in the Year 2000, highlighted fifteen areas of constitutional law likely to be decided by the Supreme Court over the intervening years, and the “alternative roads down which the Court might travel over this time.”

Twenty four years later, the Court remains precariously balanced between progressive and conservative wings with radically different visions of the road ahead in constitutional law, making 2012 just as important as 1988 in terms of the Supreme Court’s future. But, looking back at these Reagan Era reports, it is also startling how much has changed in the debate over the Constitution. Part of this, of course, is simply a reflection of the fact that the Court has decided many of the issues identified in The Constitution in the Year 2000, sometimes traveling down the conservative road, other times taking a more progressive path.

But more important, the terms of the debate itself have changed dramatically. The Constitution in the Year 2000 described the ideological division on the Court as mainly about judicial method -- “interpretivism vs. non-interpretivism or strict interpretation vs. liberal interpretation or commitment to original meaning vs. commitment to an evolving constitution” -- and about “the judicial role in contemporary society.” Whether or not those terms accurately described the ideological battleground on the Court in 1988, they certainly do not accurately describe the major battlegrounds today. In cases ranging from Citizens United to Heller v. District of Columbia, the Court’s landmark Second Amendment ruling, the Court’s ideological blocs are not fighting about whether the Constitution is living or dead:  they are fighting about what it means.

For this reason, the stakes in this fight are higher in 2012 than they were in 1988. We’re no longer fighting about judicial method. The Constitution itself is at a crossroads.