"Still Chastened": Assessing the Scope of Constitutional Change under an "Obama Court"

Abstract

For the first time since 1968, the election of Barack Obama raises the possibility of a liberal majority on the Supreme Court. In this article, I assess whether such an “Obama Court” would lead to significant constitutional change. Drawing on research regarding both the internal dynamics of the Supreme Court and the effect of the Court’s external environmental, I develop four benchmarks that historically correlate with more rapid and significant constitutional change. Taking each benchmark in turn, I argue that an Obama Court would lack the vision, the desire, and the power to fundamentally reshape the constitutional status quo. Instead, an Obama Court would likely be a mirror image of the later Rehnquist years, drifting to the left on the resolution of some constitutional problems, but in essence remaining a “chastened” institution mainly limited to incremental doctrinal change.