Summary

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 to map and describe the ideological battlegrounds on the Roberts Court. Constitutional Accountability Center (CAC) will be releasing Crossroads chapter‐by‐chapter over the next several months, beginning today with a set of three chapters on the powers of the federal government, which should help 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.

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.

Several disclaimers and explanatory notes are appropriate at the outset of this endeavor. The first is that we will not even attempt in Crossroads to cover every important topic of constitutional law or even every area in which the Supreme Court is ideologically divided. We have tried to select the most important areas of the law in which the ideological divide on the Court is most significant and pronounced, but that selection process is inherently subjective and we will not cover some topics that justifiably could be included.

Second, a few words about balance. One of the most striking, and least successful, aspects of The Constitution in the Year 2000 was the assertion by the Reagan Justice Department that it was setting forth the ideological debates on the Court “in the most objective possible manner.” While that report did strain toward objectivity in certain places, no one who read the full report was fooled into thinking that the Department had abandoned the conservative positions it had taken on many of those topics over the past eight years and was suddenly agnostic about the outcomes. Similarly, CAC is an organization “dedicated to the progressive promise of the Constitution’s text and history.” We have strong and established positions on many (though not all) of the debates discussed in Crossroads, and we do not deny that fact or expect readers to be fooled into thinking otherwise.

That said, the very nature of this enterprise requires a degree of objectivity and neutrality in terms of presenting the two sides of the ideological divide on the Court. These ideological battles do not seem very interesting if one side is presented as a caricature, or not presented at all. So we try in these chapters to present both sides of the story. Whether we have struck this “balance” correctly is up to the readers to judge.

Finally, we note that because Crossroads will be released over time and then revised and edited after the Court ends its Term in June, it is very much a work in progress. As a result, we very much welcome comments and criticisms from our readers as we shape the final product. It is our hope that Crossroads will, in a small way at least, enhance what should be a grand celebration of the Constitution’s 225th anniversary in September 2012. After all, we fight over the Constitution because it is the most important document in American life. We fight, because it matters to all of us.