The Future (Death?) of Progressive Constitutionalism

RJLipkin at RJLipkin at
Sat Jan 14 04:08:47 PST 2006

It seems clear that the Supreme Court,  as a vehicle for progressive 
constitutionalism, has been and will continue to be  a dead-end for at least the next 
decade.  Should President Bush have an  opportunity to replace Justices 
Stevens or Ginsburg change "decade" to  decades. In that case, the Roberts' Court 
might become  (virtually) the most activistic Court imaginable. 
        How should progressive  constitutionalists respond to this 
possibility (or actuality)? I don't ask this  question as an advocate of progressive 
constitutionalism--whatever that means in  our present constitutional 
culture--but rather I'm interested in the  implications of a particular constitutional 
philosophy being closed  out of the courts for the next quarter century.  I 
regard the  answer--transformative appointments--to be a nonstarter because of its 
 unpredictability, time, and its distortion of politics in a republican  
democracy. Of course, we can't be absolutely certain what sorts of Justices  
Roberts and Alito will become. But I ask these questions assuming the  worst--from 
a progressive constitutionalist perspective--at least for argument  sake. 
        So, suppose the President  gets the opportunity to appoint one or two 
more Scalias or Thomases, what will  that mean for American 
constitutionalism? And for those who decry this  eventuality, what remedies are or should be 

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
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