“It’s unclear to me that the left understands what it is to re-imagine a constitutional agenda and sell it to the American people,” said Barry Friedman, a professor at New York University Law School who is completing a history of the relationship between popular opinion and judicial review. “That’s what the right did. They lived for a long time in the diaspora. They found issues and ways to market them, with a single-mindedness of purpose and vision that has served them well.”

Image Credit... Jon Krause

Liberals have not been completely passive, of course. In the law schools, they have worked to build their own version of the conservative Federalist Society, the 25-year-old idea-incubating and networking group that confers a valuable credential on young lawyers and that numbers its members among those at the highest levels of law and politics. The American Constitution Society, founded six years ago with a single student chapter at the Georgetown University Law Center, now has student chapters at 157 law schools and chapters for lawyers in 25 cities.

“Our project is to make sure that the legal culture doesn’t simply buy today’s rhetoric,” said the group’s founder, Peter J. Rubin, a Georgetown law professor and former clerk to Justice David H. Souter. He attributes the organization’s rapid growth to “an incredible thirst for an alternative vision.”

Exactly what that vision should encompass is now the question. It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans.

The challenge for those inspired by such an agenda goes beyond the question of where the votes would come from on the current court. The notion that profound social change can be accomplished through judicial action has taken a huge beating, and even liberals, watching the political currents of recent decades, have come to doubt the ability of courts to change the world. The tension is acute between the vision of the Constitution as an engine of social progress, on the one hand, and the fear that harnessing it through judicial action to serve that role is, on the other hand, simply counterproductive.

The tension is apparent even in those liberals who sing the praises of judicial “minimalism,” as Cass R. Sunstein of the University of Chicago Law School does. In a provocative posting this spring on The New Republic’s Web site, he deplored “the absence of anything like a heroic vision on the court’s left,” a surprising complaint given his well-known advocacy of judges deciding cases as narrowly as possible.

In an interview, he elaborated. He said he was worried about the imbalance between the defensiveness and caution on the court’s liberal side and the “bold, clear strokes” issuing from Justices Antonin Scalia and Clarence Thomas. “There’s not a voice on the court for significant social reform that the others have to respond to,” he said. “It skews the court’s internal processes and public discussion of the court.”