President-elect Barack Obama (WDCpix)

“And to those Americans whose support I have yet to earn, I may not have won your vote, but I hear your voices, I need your help and I will be your president too.”

So said President-elect Barack Obama, in one of the most revealing sentences in his victory speech Tuesday. In his rejection of standard political divisions, his emphasis on “e pluribus unum,” and his gracious inclusion of those whose support he has “yet to earn,” we can find a clue to what makes our new president-elect so remarkable — perhaps even unique in the nation’s long history.

Illustration by: Matt Mahurin

Some public officials are minimalists. They do not like to reject the fundamental commitments of their fellow citizens. On environmental questions, sex equality, national security and economic policy, they try to bracket our deepest disagreements. They seek to obtain a consensus on what to do — not on why to do it.
Minimalists favor their approach because they think, as a pragmatic matter, it is most likely to work. They also insist that their approach, putting fundamental differences to one side, shows respect to their fellow citizens.

Political minimalism has a distinguished tradition in U.S. politics. In recent history, President George H.W. Bush stands as the leading minimalist. To the extent that Bush succeeded, especially in foreign affairs, it was because he enlisted diverse people, and diverse views, on behalf of the policies he chose.

Other public officials are visionaries. They have a large-scale vision about the direction in which the nation should go. They believe in big steps, not small ones.

Above all, these visionaries seek to alter the nation’s self-conception. In changing policy on the economy, or on national defense, they are entirely comfortable with asserting that their vision is the superior one and that alternative visions should be rejected. When they succeed, they transform how the nation understands itself.

Our greatest presidents — including Washington, Lincoln, and Franklin Delano Roosevelt — have been visionaries. In recent American history, President Ronald Reagan stands as the leading visionary.

Obama is something new in American politics — and not just for the obvious reasons. He is a visionary minimalist. This is a key both to his extraordinary campaign and to his unique promise. It even helps explain his conception of public service.

Obama’s minimalism lies in his consistent rejection of the standard social divisions — between red states and blue states, liberal and conservatives, Democrats and Republicans. As he said in his 2004 Democratic Convention speech, “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states.”

Ronald Reagan (Wikimedia)

Obama shows unfailing respect for those with competing views. In designing policies — on climate change, tax reform, energy conservation, foreign policy — he attempts to produce solutions that will accommodate, rather than repudiate, the defining commitments of his fellow citizens. Even on the most divisive issues of separation of church and state, Obama favors approaches that will attract support from all sides.

But Obama is a visionary too. Unlike most minimalists, he is willing to think big.

When he speaks of change, he means to include ambitious plans for energy independence, universal health care and educational reform. No less than Reagan, he wants to transform the nation’s self-understanding. He seeks not only to go beyond the divisions of the 1960s, but also to synthesize deeper strands in our history.

Thus Obama recognizes and celebrates the individualist strain in American culture. But he draws attention to a counterpoint — one that emphasizes mutual obligations.
As he said in 2004 and has often repeated since, “If there’s a senior citizen somewhere who can’t pay for her prescription and has to choose between medicine and the rent, that makes my life poorer, even if it’s not my grandmother. . . . It’s that fundamental belief — I am my brother’s keeper, I am my sister’s keeper – that makes this country work.”

With the election of a new president, I expect that we will soon enter a novel period of American life, in which a commitment to public service, sacrifice and a sense of mutual obligations will play a far larger role. That commitment will be anything but partisan. It will be felt in red states and blue states alike.

And it will be made possible, and fueled, by the visionary minimalism of America’s president-elect.

Cass R. Sunstein is Felix Frankfurter professor of law at Harvard Law School. He will be the Harry Kalven Visiting Professor at University of Chicago Law School in January 2009. His most recent book, which he co-wrote with Richard Thaler, is “Nudge: Improving Decisions about Health, Wealth, and Happiness.” His books include “Are Judges Political? An Empirical Analysis of the Federal Judiciary” and “The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever.”

More justices in the mold of Antonin Scalia could be on the way under a McCain presidency. (Flickr: eralon)

There has been much debate about whether Sen. John McCain is a candidate of change. But in one area, McCain is unquestionably a reformer. He would almost certainly make fundamental changes in the direction of the U.S. Supreme Court.

McCain has said that, should he be president, Chief Justice John Roberts and Justice Samuel Alito “would serve as the model for my own nominees.” He regularly attacks what he calls “activist judging,” and he described a recent ruling vindicating the right to habeas corpus as “one of the worst decisions in the history of this country.” McCain has repeatedly said that Roe v. Wade was wrongly decided and should be overruled.

Illustration by: Matt Mahurin

If McCain is elected, change would clearly be coming to the U.S. Supreme Court. And in constitutional law, the Republican presidential nominee is anything but conservative. Once skeptical of the idea that the court should overrule Roe v. Wade, he now invokes the clichés and code words of the extreme right. His votes have matched his words, for he has been a proud and enthusiastic supporter of President George W. Bush’s most extreme appointees to the courts of appeals.

Recently McCain complained of “the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.”

In his view, the “system of checks and balances rarely disappoints,” but “there is one great exception in our day”: the Supreme Court. McCain aims to eliminate that exception. It is more than mere speculation to suggest that with judicial appointments, McCain may well follow the extreme right-wing of his party.

The court is already dominated by Republican appointees, and in the last 20 years, it has shifted dramatically to the right. The next president is expected to be able to appoint at least one — and possibly as many as three — new members. Even a single appointment would likely shift constitutional law in major ways.

The right to choose remains sharply contested within the Supreme Court — and the Republican Party and the pro-life movement have long sought to eliminate that right. The McCain-Palin ticket plans first to “return the abortion question to the individual states” and then “to end abortion at the state level.”

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

But abortion is only the tip of the iceberg.

Consider McCain’s astounding statement that the court’s recent vindication of the right to habeas corpus is among “the worst decisions” in the nation’s history. (As bad as Dred Scott v. Sandford, entrenching slavery? As bad as Lochner v. New York, striking down maximum hour laws? As bad as Plessy v. Ferguson, upholding racial segregation?) McCain’s favorite justices — Roberts and Alito — have consistently sided with the Bush administration in cases involving the constitutional authority of the president. Under a President McCain, their dissenting views might well become the law of the land.

The Supreme Court has already struck down provisions of the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Violence Against Women Act. A McCain court would go further. Some Republican appointees have raised constitutional doubts about provisions of the Endangered Species Act, the Clean Air Act and the Clean Water Act. With new members on the court, important environmental laws would face fresh constitutional scrutiny.

In the last decade, Republican appointees to the bench have led a constitutional attack on affirmative-action programs. But in some areas, like education, for example, government is allowed to engage in a modest degree of affirmative action. With an appointment or two by a McCain administration, affirmative-action programs might be banned entirely.

Does the Constitution allow Congress to enact campaign-finance reform? McCain clearly thinks so. But his favorite justices — Roberts and Alito — have severe doubts. Campaign-finance proposals already face acute constitutional doubts. With one or two McCain appointments, most such proposals may well become constitutionally unthinkable.

All this offers merely a glimpse. Some Republican appointees want to restrict citizens’ rights of access to federal courts, to give commercial advertising the same level of protection as political dissent, to provide new protection to property rights (at the expense of environmental law), to narrow the court’s decisions involving sex discrimination, and much more.

There is a major irony here. McCain calls for “strict construction” and “judicial restraint,” and he rejects “legislating from the bench.” But in countless areas, conservative appointees avoid strict construction, and they are all too willing to legislative from the bench.

There is a close connection between the constitutional views of McCain’s his preferred judges and the political views of the extreme right-wing of the GOP. To say the least, it would be a startling coincidence if the best interpretation of the Constitution turned out, fairly consistently, to entrench the political views of one or another side.

When McCain calls for “strict construction” and “judicial restraint” while opposing “judicial legislation,” no one should be fooled. Is it “restrained” for justices to invalidate campaign-finance laws and provisions of the Violence Against Women Act? Is it “strict construction” to strike down affirmative-action programs, to ban Congress from allowing citizens to sue in federal court, to give unprecedented protection to property rights?

When McCain speaks of strict construction and restraint, he is speaking in code. He is signaling his desire to produce large-scale change in the direction favored by the far right — for starters, and above all, by overruling Roe v. Wade.

It is not at all clear that a McCain administration would seek to reorient current practices in the domestic arena or in foreign policy. But there is no doubt that in constitutional law, McCain favors fundamental change.

The question remains: Is this really the change we need?
Cass R. Sunstein is Felix Frankfurter professor of law at Harvard Law School. He will be the Harry Kalven Visiting Professor at University of Chicago Law School in January 2009. His most recent book, which he co-wrote with Richard Thaler, is “Nudge: Improving Decisions about Health, Wealth, and Happiness.” His books include “Are Judges Political? An Empirical Analysis of the Federal Judiciary” and “The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever.”

U.S. Supreme Court of the United States (WDCpix)

Who are the real activists on the U.S. Supreme Court? Do Republican appointees differ from Democratic appointees? How much? Are federal judges political?

I have been studying these issues with several colleagues, including Thomas Miles, an economist and lawyer at the University of Chicago Law School, for a number of years now. One big question: Do judges show a political bias? We also wanted to see what any bias might tell us about how judges might rule in the future – under, for example, an Obama or McCain administration.

Illustration by: Matt Mahurin

We catalogued thousands of judicial decisions — well over 20,000– to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan — in that they are more likely to vote in favor of conservative agency decisions than liberal ones. (Because Chief Justice John Roberts and Justice Samuel Alito have been on the court only a short time, we did not include them because we had too little data.) We wanted to see if some justices are more political in their voting patterns than others – and also learn something about how future administrations are likely to fare in the Supreme Court.

We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal.

We used this method because the relevant question is not whether an agency’s decision is liberal or conservative in the abstract — it is how and why that decision is challenged in its context. In addition, though we had many students working on this, we read every decision ourselves, making adjustments when our method led to errors.

We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?

Our answers: Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.

Here are the results:

Table 1: Partisan Voting on the Supreme Court

This information does not tell us everything we need to know. Thomas shows the strongest partisan bias, but is he also an activist? Does he vote to strike down agency decisions at a high rate? To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions.

It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results:

Table 2: Activism and on the Supreme Court

While the Supreme Court gets the most attention, the lower courts are also important in determining the meaning of national law and shaping national policy. To analyze their behavior, we decided to focus on how Republican and Democratic appointees approach the decisions of the Environmental Protection Agency and the National Labor Relations Board.

We asked whether Republican appointees are less likely to vote to uphold liberal decisions from those agencies, than conservative ones; and whether Democratic appointees show the opposite pattern. Here, too, we defined agency decisions as liberal or conservative depending on who challenged them. If a labor union or an environmental group made the challenge, for example, the decision was labeled conservative. If a company challenged a labor ruling or an environmental regulation, the decision was characterized as liberal. We again read all the decisions here to test our characterizations.

The answer: Partisan voting is pervasive on the lower federal courts.

When the agency’s decision is conservative, Republican appointees are far more likely to vote to uphold it than are Democratic appointees. Democratic appointees show the same bias: When the agency’s decision is liberal, Democratic appointees are much more likely to vote to uphold it than are Republican appointees.

Republican appointees vote to uphold liberal agency decisions at a significantly lower rate than conservative agency decisions. Democratic appointees vote to uphold liberal agency decisions at a significantly higher rate than conservative agency decisions.

This evidence offers three important lessons.

First, widespread conservative complaints about “liberal judicial activism” should be taken with many grains of salt. If we ask how often the justices vote to strike down agency decisions, Scalia and Thomas, the most conservative members of the Supreme Court, show the most activist voting patterns. By contrast, the justices commonly described as “liberal” are the least activist.

Of course, there are other measures of what makes a judge “activist,” and I do not claim that our method cannot be challenged, but it is useful to offer some statistical tests, which can ensure that critics are not building their conclusions into their definitions.

Second, partisan voting is a serious problem in the federal judiciary. If the EPA issues a regulation that is aggressive in cleaning the air, or if the National Labor Relations Board resolves a dispute in favor of a union, a panel that consists solely of Republican appointees is unusually inclined to strike it down. That’s indefensible. No one should approve of a situation in which the fate of an environmental regulation depends on whether a lower court panel consists of one, two or three Republican appointees.

Third and perhaps most important, federal agencies in an Obama or McCain administration are likely to make a number of decisions that are more liberal than those of the Bush administration. Many decisions will ultimately be challenged in federal court — and the Republican-appointed judges who dominate the federal bench could well prove to be a big obstacle. On the Supreme Court, for example, Scalia and Thomas might be joined, much of the time, by Roberts and Alito. On key occasions, Kennedy might probably join them as well.

The lower federal courts could prove an even more serious barrier. Those courts have been stocked with appointees of Presidents Ronald Reagan, George H.W. Bush and George W. Bush. The voting behavior of appointees has been clear: They show a distinctive tendency to strike down agency decisions that do not follow a conservative line.

Here, then, is a major warning for the next administration – and a potential problem for democracy itself.

Cass R. Sunstein is Felix Frankfurter Professor of Law at Harvard Law School, as of Aug. 1. He will be the Harry Kalven Visiting Professor at University of Chicago Law School in January 2009. His most recent book, which he co-wrote with Richard Thaler, is “Nudge: Improving Decisions about Health, Wealth, and Happiness.” His books include “Are Judges Political? An Empirical Analysis of the Federal Judiciary” and “The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever.”