How the legal left can rein in the Roberts Court

Slate Magazine: By Emily Bazelon

Let's say, though, that next term, Roberts is even more successful in wooing Kennedy than he was this term, which seems entirely plausible. What kind of 'unity' would that get us? The answer is in Sunstein's new essay (here's an early version). He argues that 1) today's court has no William Brennan or Thurgood Marshall (Ruth Bader Ginsburg is not that liberal), whereas the 1980 court had no Antonin Scalia or Clarence Thomas; 2) three of the court's supposed 'liberals'—Breyer, David Souter, and John Paul Stevens—are really moderates, akin to the old Stevens-Lewis Powell-Byron White trio; and 3) the trade-off in the center of Harry Blackmun for Anthony Kennedy is a loser for the left, too. Sunstein still believes in restraint (he calls his version of it 'minimalism'). But while he doesn't think the likes of Brennan and Marshall should run the show, he also now says that 'something has gone badly wrong if the Court has a strong right-wing without any real left.' And it's even worse that the court's moderates are being cast as left-wingers, thus belying the court's overall conservative creep.