The other day the California Supreme Court decided not to grant review in Vergara v. California, which raised the issue of whether state law regarding teaching tenure violates the equal protection rights of students (basically, by irrationally allowing bad teachers to stay employed). The Court was divided 4-3, with Justices Goodwin Liu and Mariano-Florentino Cuellar dissenting and urging that the case be heard. [Disclosure: Justice Liu was my law school classmate.]
I think that the dissenting position in this case represents the future of liberal constitutional thought, keeping in mind that there was no decision on the merits in Vergara. What I mean is that liberals in the academy and on the courts are probably going to start taking more seriously the idea that the Constitution confers positive rights or requires a more compelling state justification for policies that lead to unequal outcomes in the distribution of those benefits by legislation. When I say the future, I mean a decade from now. Merrick Garland and Steven Breyer are the archetypal legal process liberals who will not be terribly interested in such claims, but the next generation will probably have greater faith in the judicial capacity to address these problems.
Whether this is a good idea is another matter. We’ll cross the bridge when it comes.