Night of the Living Constitution

In sharp contrast to McCain, Obama is the nominee of a party that has embraced the activism of the Warren Court and its expansion under the Burger Court (think Roe v. Wade) and which has hardened in its hostility to judicial conservatism during the Bush presidency. Obama has proved to be one of his party's most determined opponents of judicially conservative nominees. He voted not only against Roberts and Alito but also against six circuit-court nominees and joined in the Democrats' filibustering of such nominees--which filibustering was without precedent in Senate history.

Obama, a Harvard-trained lawyer who for a decade taught constitutional law at the University of Chicago Law School, has said "my judges" should have "the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old." He has characterized such people as being in "the minority" and "on the outside" and not having "a lot of clout." His judges should help them by importing to their deliberations their own "perspectives," "ethics," and "moral bearings." Thus his judges would carry out the judiciary's "historic role" of protecting those who "may be vulnerable in the political process," who have seen "the system not work for them," who don't "have access to political power," and who "can't protect themselves from being dealt with sometimes unfairly."

What's striking about comments like these is that Obama seems to be espousing a sort of "Footnote Four" judicial philosophy. Footnote Four is the most famous footnote in constitutional law. It's found in United States v. Carolene Products, the 1938 case in which the New Deal Court sustained a law prohibiting the shipment of so-called "filled milk" across state lines. (It is remembered today solely because of its renowned footnote.) Marking a turning point in constitutional law, Footnote Four confirmed the court's new-found deference to economic regulation while announcing the judicial intention, as Lucas A. Powe Jr. puts it in his history of the Warren Court, to protect "those who need protection." The footnote called them "discrete and insular minorities"--those Americans, says Powe, who "even in a well-functioning political process may not be able to form coalitions and thus may be subject to discriminatory legislation."

For Obama, it would seem that what he calls minorities or outsiders would encompass not only those "vulnerable" in the political process and thus "subject to discriminatory legislation" in a Footnote Four sense but also those who encounter a "system" that doesn't work for them. It appears for Obama that the courts must be involved in improving things for all of those "who need protection," and it could be a large group considering that Obama's informal, campaign-trail list hardly seems exhaustive.

Obama, who is a stout defender of the right to abortion announced in Roe, would seem to want judges sympathetic to arguments that the Constitution protects a fundamental right to education or health care or housing--perhaps even a right to credit. Though Obama has supported the death penalty in certain, narrowly defined circumstances, his philosophy would also seem to entail its judicial abolition. And with regard to race-based preferences, judges who share his philosophy could push for their permanent institution in higher education, employment, and contracting as a way of making the "system" work better for certain minorities.