By Mark Tushnet
Suppose that a Democratic president makes a “relevant” appointment to the Supreme Court – that is, a replacement for one of the Court’s conservative justices (among whom I include Justice Kennedy). What can progressive scholars and activists say about the new Court’s agenda?
Some immediate qualifications: You shouldn’t think that the President will name and the Senate confirm someone who has exactly the agenda you’d like. The pool of potential nominees is already mostly set, and consists of mostly reasonably conventional lawyers. So, don’t think “creatively” about who would be named. Instead, think about what’s likely to be realistically achievable with a Court consisting of five more or less standard Democratic-nominated justices.
Second, don’t think that you’re going to be able to control the issues presented to the Court. You’ll have your ideas about the new Court’s agenda, but lawyers all over the country will have their ideas and, more important, they’ll have clients who might find advantages in pursuing lines of argument that you think mistaken or cases that you think marginal to a progressive agenda. This point is especially important in connection with thinking about designing a long-term litigation campaign aimed at using incremental changes in the law to reach some larger goal. You might think that one specific case or type of case should precede another, but you can’t control the course of litigation.