Mr. Kendall argued publicly, in judicial nomination hearings and before the courts, on behalf of affordable health care, voting rights, fair housing, marriage equality and other causes, insisting all the time that the framers were not “a group of gun-toting, property-loving and tax-hating defenders of big corporations and proponents of small government,” as he wrote in the journal “Democracy.”
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“Doug Kendall had a vision,” [National Constitution Center Director Jeff] Rosen said in an interview, “and that was that liberals and progressives — by making arguments rooted in constitutional text and history — could persuade open-minded conservative and libertarian judges of the correctness of their position.”
"You can't be a great chief justice and the leader of an ideological movement at the same time," said Doug Kendall, president of the liberal Constitutional Accountability Center, which conducted a year-long review of the Roberts Court. "He has to decide whether to be with them or whether to be chief justice." (Kendall passed away Saturday after a battle with colon cancer.)
A few days before Kendall died, [Yale Law School Professor Akhil] Amar sent him a note expressing sorrow and admiration. “You are one of my heroes in life—a truly good and great man,” Amar wrote in the note, which he shared with the NLJ. He also said: “We are on the right side of history and justice, and none of what we have done—and will continue to do, as an organization—would have been possible without you.”
Those rulings were unpopular with the right, but they do not provide much evidence that Chief Justice Roberts has turned into a liberal, said Brianne Gorod, a lawyer with the Constitutional Accountability Center, a liberal group that has issued a series of reports assessing the chief justice’s decade on the court. “It’s just a ridiculous claim,” Ms. Gorod said. “He has been exceptionally conservative throughout his entire 10 years. They just really dislike the way he voted in the A.C.A. cases.”
“If the court takes a reproductive rights case or an immigration case is could end up being a very momentous term,” said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center.
Kendall founded the center in 2008 to provide a counterweight to conservative interpretations of the Constitution and the history behind it. He argued that the Constitution was a progressive document.
The Roberts backlash is all the more curious because unlike Souter and Kennedy, the chief justice has not taken what most legal analysts would view as liberal stands. Roberts “is a very conservative justice who occasionally surprises,” said Brianne Gorod, a former court clerk who analyzed his 10-year record for Constitutional Accountability Center, a progressive legal group.
Numerous federal laws protect the rights and pocketbooks of individual Americans as we go about our daily lives. When a corporation violates one of these laws, the harm to a single person may be relatively small, but the aggregate financial windfall to the corporation may be quite large, as my own case shows. Without the benefit of class actions, it would be difficult, if not impossible, for individual Americans to vindicate many of our rights and bring an end to corporate wrongdoing.
According to a fascinating review of Roberts’ record as chief justice by Brianne Gorod of the liberal Constitutional Accountability Center, the story “is not altogether a simple one. To be sure,” Gorod writes, “John Roberts is a very conservative justice, one who votes to move the law sharply to the right far more often than not.... But there are other areas as well -- areas in which Roberts’ deep concern about the institutional legitimacy of the court and his reputation as its chief justice can lead him to put law over ideology. Those areas may be few, but they can also be important.”
Two decades ago, the Nation came together to celebrate the bicentennial of the 1787 Constitution. As the Second Founding turns 150, we should all work to ensure that it receives a celebration that’s worthy of the constitutional achievements of President Lincoln and his generation.