EK: This is one of those things that's coming up in a lot of my interviews. Everyone agrees she's brilliant and hardworking, but they really emphasize her tactical intelligence, her ability to negotiate out to the position she wants. I guess more people have seen it because she worked on the Hill and in the executive branch. But I don't know how to weight it. How important are these skills?
SL: I think it's an important skill, but it's a different skill. Being a judge is a cerebral enterprise. It's not like political negotiation where you're trading this piece of the decision for that piece of the decision. It's more being able to understand other people's intellectual frameworks and figuring out ways to work within those frameworks and nudge them in the direction of results you favor. Stevens was just extraordinarily good at this, and I think Breyer is good at it too. But on this court, which is so dominated by intellectual legal superstars, you have to be able to play at that level in order to get in the game in the first place. For instance, I don't think Earl Warren would be enormously effective in moderating Roberts's or Kennedy's views because they wouldn't take him seriously. That doesn't mean Warren wasn't a great justice. But it's a different court today.
The press, once again intent on creating truth from its own ignorance by process of repetition, keeps emphasizing the importance of Obama appointing a smart consensus builder to replace Stevens. Of course, Breyer, a pragmatist with a sharp legal mind who gets along well with Scalia, already fits this mold.How's that working for us?
A lot of what you're saying sounds like a defensive vision for legal liberalism. That's a change, right? The old version was that conservatives wanted a passive judiciary that wouldn't try to legislate from the bench while liberals wanted an active judiciary that saw social justice as part of its mandate. But you're saying that it's now flipped and conservatives want the active judiciary while liberals want a more passive court that won't impede legislative progress. Is that right? And if so, is that a sufficient philosophy for liberals?I'm fairly sure that's where the "strict constructionists" come in and say that what matters is what the Founders had in mind. They were apparently ordained by God. (Actually "strict constructionism" has a real (if idiotic) meaning in legal philosophy, but in practice it's used by the right to convey the idea that the wrong people are benefiting from rights that were only meant for Real Americans.)SL: Over the last 20 or 30 years, conservative majorities have done so much damage to very significant New Deal and Great Society and kindred social legislation that undoing that damage would actually be a very affirmative broad goal to set. And the philosophy behind that goal, a philosophy that Justice Stevens held close, is that it's critical for judges to interpret statutes to promote the basic goals that Congress had in mind when it enacted the statute.