Columnist Ezra Klein of Newsweek sought a couple of expert opinions about the issues the next Supreme Court justice is likely to face during the coming decades:
So I called Bruce Ackerman, a legal scholar at Yale, to ask what issues politicians should be thinking about as they choose a justice who will serve for the next 20 years?not, as it sometimes seems, the last 20 years. “For sure,” he said, “the status of undocumented aliens is going to be much more salient in American law. We’re going to have 10 [million] or 15 million people or more who’ll find themselves in a position increasingly like black people before 1954. That will be a terribly serious issue, and the court will have to decide how to respond.”
Ackerman also thought the sustainability of the entitlement state could end up before the Supremes. “What happens when promised benefits are cut back dramatically?” he asked. “Will the court protect the weak, or not?”
Simon Lazarus, public-policy counsel at the National Senior Citizens Law Center, was more pessimistic. “We are in an era where the issue is whether the court will become a conscious agent overturning progressive laws the way it was before the New Deal,” he said. Citizens United grabbed headlines for its audacity, but Lazarus believes it’s only one of many examples of the Roberts Court legislating?or, more to the point, delegislating?from the bench. “They’ve been in the legal underbrush, narrowly construing laws so they’re not workable, or eliminating remedies so they can’t be enforced, or stopping consumers and businesses from getting into court with claims in the first place,” he said.
Note that neither Ackerman nor Lazarus had much to say about correct interpretations of the text of the Constitution. They focused instead on policy outcomes.
It might have been interesting to read how an originalist would have responded to Klein’s query.
