Jack Balkin agrees with Eric Posner that if the Democrats fill the seat vacated by Justice Scalia, there will be a significant change in liberal arguments:
The liberal constitutional theories of the past twenty-five years had to come to terms with a conservative majority that had no qualms about using judicial review to promote conservative constitutional values. Therefore many liberal theorists advocated various forms of judicial restraint, judicial minimalism, popular constitutionalism, and, in general, taking the Constitution away from the courts.
Eric is right that if the balance of power in the federal courts changes dramatically, liberal constitutional theories that focus on the courts will make a comeback, as will the work of earlier Warren Court defenders like John Hart Ely and Ronald Dworkin. Who knows? Perhaps Laurence Tribe—or his appointed successor—will take up his famous treatise once again.
Let’s pause to examine this claim. What Jack appears to saying—admitting—is that the liberal constitutional theories have been strategic. The liberals are not arguing what they believe as a matter of first principle. They are engaged in strategic arguments in an effort to foreclose the conservatives from deciding cases in ways the liberals don’t like.
Some years ago, Sai Prakash reviewed a Cass Sunstein book advocating judicial minimalism. Sai called out Cass, claiming that Cass only wanted narrow judicial decisions when the conservatives were in the majority. When the liberals were in the majority, Cass would replace judicial minimalism with judicial activism.
Sai’s claim was thought to be quite provocative by some at the time, since it accused Cass of a type of dishonesty. But unless I misinterpret him, Jack is admitting that Sai was generally correct. (Jack does not mention Cass Sunstein by name but he does mention his theory of judicial minimalism.)