*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Progressive litigators who have to deal with the Supreme Court unsurprisingly count votes and understand that to win there they have develop arguments that have some chance of getting votes from Justice Kennedy and perhaps Chief Justice Roberts. That leads them into what I have called a defensive crouch: Maybe we can win by showing how what we think the Constitution means in this specific case is consistent with what Justice Kennedy has said the Constitution means in some other case.
For a litigator that is a sensible tactic (though not the only one – sometimes you can ask for the sky and let the justices think of themselves as moderates by coming up with a solution that gets you pretty much what you wanted in the first place). And, to the extent that scholars think of themselves as providing reflective or theorized arguments that litigators can adopt, it is also a sensible course for some progressive scholarship – even if that scholarship sometimes seems to treat Justice Kennedy implausibly as having especially deep insights into what the Constitution really means.
But defensive crouch arguments are not the only ones worth making. Rousseau described his project as taking people as they are and laws as they might be. There is a similar project for progressive constitutional scholarship of taking the Constitution as it is and the Supreme Court (and Congress and the polity) as it might be. I call that the project of utopian constitutional theory.