On Friday September 15, students packed into room 120, filling the classroom to capacity, to hear a discussion between Paul Smith, a noted lawyer, Supreme Court advocate and counsel in Lawrence v. Texas, and John Yoo, a professor of law at UC Berkeley, who authored the Bush administration’s torture memo while working for the Department of Justice.

After brief introductions, Smith began the talk by explaining how the change from the Rehnquist Court to the Roberts Court was not a major change; rather the change from O’Conner to Alito would make the most significant difference and signify where the court will head in the future. Before, Smith stated, an advocate trying to convince the court knew there was always two justices that might contribute the necessary fifth vote: O’Conner and Kennedy. That number is now one, and the question about where Kennedy will fall on critical cases now becomes a concern to any lawyer hoping to win a case on a major issue.

Turning to the topic of progressive views on the law, Smith explained that the major factor always centered upon individual rights, with the major point of difference being how aggressively to read and enforce the rights articulated in the Constitution. This encompasses ideas such as the evolutionary nature of the Constitution and individual rights, as well as the use of substantive due process to expand and articulate individual rights. Substantive due process, said Smith, is law not based on the text of the Constitution; rather, substantive rights are read into the constitution.

The Supreme Court is basically in agreement that this area of law exists, said Smith. Even Rehnquist and Scalia have stated that there are rights that exist which are not stated directly. The distinction between liberal and conservative judges is simply on how the court goes about deciding what rights to recognize. To Smith, conservatives believe rights exist if they were protected by law back in the 1700s and 1800s. Liberals and progressives on the other hand, argue that court should change with changing times, finding rights that are valued by the society that has evolved, if not specifically recognized when the Constitution was written.

The basic idea for progressives is to look at the fundamental values behind the Constitution and apply them to current facts and situations, looking more at broad values and concepts that are inherent in their perception of reality and their views on personal rights. Smith indicated that this was the broad viewpoint he attempted to make in Lawrence, pointing to contemporary society’s discomfort in even examining the Texas sodomy statute that was at issue in that case. While the Court was hesitant to find new protections for a class of people in Lawrence, the gut-level reaction was that American society should not support a law whose purpose is to discriminate against a group such as homosexuals. When particular causes are molded to a greater vision of society, Smith argued, the liberal interpretation of the law becomes much more acceptable.

However, Smith claimed, liberals and progressives have done a terrible job of articulating a common view on the law. Conservatives and traditionalists, on the other hand, have done a wonderful job in articulating their concept of the law in a way that resonates with many Americans and voters. Smith ended by stating he believed that the progressive view was the right way to look at the law, but that courts should implement this idea carefully and responsibly, to allow our society to advance properly.

John Yoo began his portion of the talk by noting that the new Roberts court still had, despite the chief justice’s commitment to more unanimity, the strong potential to be as polarized as before. Only time will tell in this matter, as there is little data from the previous term to reach a conclusion either way. The only major change from the Rehnquist to the Roberts court was the solidification of Alito as the fourth member of the conservative bloc. Yoo stated, much like Smith, that the real mover on the court is Justice Kennedy, whose role in the middle will likely make him the deciding vote on most major issue cases.

Yoo then spoke on the role of the Reagan revolution in producing what appears to be a more conservative shift on the courts, but noted that the revolution has yet to succeed, the result of the Hamdan case being a clear example. While Roberts and Alito may be products of that revolution, Justices Thomas and Scalia are more textual/originalist in nature, different from the “common law” conservative philosophy of Roberts and Alito.

In closing, Yoo spoke of the role between the courts and Congress, and how Justice Kennedy’s role will become so important in that balance. Before, said Yoo, O’Conner was conceivably the most powerful woman in America, because of her role as a mover and shaper on the court. Now, Kennedy alone will fill that void, and this change is not necessarily a good thing for how our political system should work. We do not necessarily want the Supreme Court making these decisions over the state, as the courts tend to make things more political and more polarized. This change has led to a major politicalization of the court and the appointment process, and created much of the hostility concerning key judicial decisions and political issues, and it is something we all should watch for in the coming term and in the coming years.