Obama’s Legal Scholarship Suggests Moderate Pragmatist Pick for Court

Pres. Barack Obama is in a unique position, both among American lawyers and even among US presidents: not only will he be able to place at least one Justice on the Supreme Court, he will do so with a wealth of experience in legal scholarship behind him. His work as Harvard Law Review president and Constitutional law professor give him a deep background understanding of the Supreme Court’s rulings.

Friends and former colleagues remind that Obama has not been known for pushing a liberal agenda through his analysis or use of the law. His view of the Supreme Court, it is said, is that it should not be too far ahead of public opinion on effecting important progress.

According to The New York Times:

Former students and colleagues describe Mr. Obama as a minimalist (skeptical of court-led efforts at social change) and a structuralist (interested in how the law metes out power in society). And more than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions. This may be his distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people’s lives.

For those unfamiliar with the meaning of “community organizer”, Obama’s work in Chicago helping to organize civic involvement had a lot to do with making sure people can be part of the system that governs their quality of life, setting margins and providing services. Understanding how legal decisions affect the ability of individual citizens to exercise their civil liberties or take their place in a free society, including the mundane activities of work and family, Obama’s perspective on the past actions of the Court and its future makeup is born of a keen awareness of how the abstractions of law, social attitude and public policy, really play into the degree to which anyone can be said to be free or pursuing happiness.

It is encouraging that the information now being produced relating to his past legal scholarship seems to mesh with the clues he gave us as a candidate: Obama was consistently heard to say that the motivation for his campaign was the call of his supporters, that for him government really belongs to the people and that his work would simply be to serve as best he could. For opponents, this seemed like posturing, but given his pragmatist approach to governing and the testimony about his intellectual roots, we have an even sharper picture of a principled moderate who is focused on what government means to citizens’ lives.

The Times quotes several former students, who remember learning about both the process of judicial review and the process of crafting legislation from a professor who also served in the Illinois state senate:

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied. To make his point, Mr. Obama, then a state senator, took students with him to Springfield, Ill., the capital, to watch hearings and see him hash out legislation.

Pragmatism sometimes means one is above the fray, able to work with people of rigid ideology, despite policy differences, working for the best outcome. But it also means one sees and understands the fray for what it is, in part the busy interplay of voices jockeying for primacy in a democratic system. Obama’s history of interest in the social context of law suggests his concern will be, perhaps like Pres. Bush’s when he named Justice Souter, to fortify the long-term integrity of the Court’s way of reasoning legal judgment.

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