Now there's a plan

New York Times: By Linda Greenhouse

[Law Prof. Cass Sunstein] said he was worried about the imbalance between the defensiveness and caution on the court’s liberal side and the “bold, clear strokes” issuing from Justices Antonin Scalia and Clarence Thomas. “There’s not a voice on the court for significant social reform that the others have to respond to,” he said. “It skews the court’s internal processes and public discussion of the court.”

ONE such voice belonged to the justice Cass Sunstein clerked for: Thurgood Marshall. It was 40 years ago next month that President Lyndon B. Johnson named the famous civil rights lawyer to the court. There have been only two Democratic appointees from then until now, a fact of history so stark as to sound implausible.

With a tide so long in the running, it is no wonder that some leading liberal scholars are looking to the far horizon. “The idea that one can regroup and come back at the court is not realistic for the foreseeable future,” Prof. Laurence H. Tribe of Harvard Law School said the other day.

Two years ago, Professor Tribe suspended work on the third edition of his monumental treatise on constitutional law, declaring that the moment had passed for propounding a “Grand Unified Theory.” His current ambition, he says now, is to “teach to the future,” in ways that will challenge the current climate and “make a difference 20, 30 or 40 years from now.”

Now there’s a plan.