Is Hamdan “Our Brown”?
It is sometimes said of today’s progressives that our agenda is a defensive crouch. More energy is spent
rehashing defending old decisions than imagining new victories. I’ve always thought that this criticism, like critiques of democrats generally, is easy to exaggerate. Contingency, not planning, seems to win elections (and thus control courts). But it is true that today’s law students, of a certain mind, have few modern decisions that resonate like liberalism’s now fifty-year-old great triumph in Brown v. Board. Constitutional law class, with certain professors, can be like watching a slideshow of Aunt Mimie’s wonderful twenty-year old trip to England: it’s all stale and impersonal. Thus, a colleague at Temple suggests to me an interesting question: is it right to think of Hamdan as this generation’s Brown?
To be “our Brown”, a case must: (1) be controversial when decided; (2) attain orthodoxy quickly – so much so that a theory of constitutional interpretation that does not lead to its result is presumptively illegitimate; (3) purport to definitively resolve the major social question then facing the nation. (Roe and Lopez fail #2, for e.g.)
Hamdan has some of these characteristics, although (obviously) it was unanimous, it wasn’t written to inspire, and its scope is up for considerable debate. (Check out the Sunstein-Lederman debate). Indeed, if our guest Craig Green is right, perhaps the decision is nothing more than Lopez-redux: go forth, other branch, and collect better reasons. If the executive takes up Green’s challenge, or if later courts narrow Hamdan, then it has no shot at the Brown pantheon, and instead would be (at best) a “modern Youngstown.” But if the decision is seen to be a fundamental limitation of the executive branch, then perhaps its legitimacy will aggregate over time. Future judicial nominees would have to genuflect to the decision to achieve the bench: it would have taken its place in the canon.
Are there other contenders?