The Gore Court

[Sanford Levinson]

I am glad that Rick Duncan recognizes the fact that President Clinton as an
avid supporter of RFRA.  I would be somewhat surprised if Gore's appointees
shared what I continue to believe is the megalomania of the current Court
with regard to their being the *only* legitimate interpreter.  (See,
incidentally, Jeff Rosen's very interesting review of my colleague Scot
Powe's book on American Politics and the Warren Court, in this works New
Republic; Rosen argues, I think persuasively, that the current Court is far
less deferential to other institutions than the Warren Court, which never
(or only very rarely) displayed the open contempt for legislative
competence that the Rehnquist Court seems regularly to display.)  My hope
is that Gore would name Walter Dellinger to the Supreme Court, and I think
there is every reason to believe that Walter would be extremely sensitive
to the complexities of religion-and-state in the contemporary era.  Indeed,
he participated in a conference at Brigham Young several years ago, when he
was still head of the Office of Legal Counsel, and he went out of his way
to endorse more "moderate" readings of the First Amendment than those
identified with standard-form liberal Democrats.  I would hope that my
colleague Doug Laycock would be on any short list, and I take it that Rick
would trust Doug in this area, whether or not they agree on every last
detail.  I see nothing in Gore's record to believe that he would look to
the ACLU for advice in making appointments to the Court.  After all, he is
the candidate promising ever increasing governmental regulation of popular
culture, and he presumably supported the telecommunications laws struck
down by the Court.  (I say this with mixed feelings, since I continue to be
dismayed by the Clinton-Gore Administration's general indifference to many
civil liberties or to the rights of criminal defendants, even as I myself
has strayed fairly far from the ACLU's position with regard to
religion-and-state.)

sandy