Obama's Judicial Third Way

Jeff Rosen tries to pin down Obama's judicial philosophy, which falls somewhere between the top-down activism of the Warren Court and the strict constructionism of Scalia:

In “The Audacity of Hope,” Obama calls for “a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had.” As it happens, the same metaphor of conversation or dialogue is now being elaborated and made more concrete in a legal context by some of the country’s most notable progressive legal scholars. They call themselves “democratic constitutionalists.” And they and Obama seem to be arguing along similar lines, suggesting that the courts should neither issue rarefied edicts from on high nor passively defer to the political branches but instead participate in a “dialogue” with Congress, the president and the American public to define and protect constitutional values.

Rosen elucidates that vague definition through the issue of gay marriage:

While a Warren Court liberal might counsel the Supreme Court to leap ahead of public opinion and provide constitutional protections for gay marriage today, and while a minimalist might urge state and federal courts to wait until public opinion has shifted decisively, a democratic constitutionalist would embrace bold state court decisions but hold back at the federal level. In tandem with gay-marriage activists, in other words, state courts can play a role in building a national consensus for gay marriage that the U.S. Supreme Court may eventually recognize, protect and enshrine in constitutional terms.
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“Right now, same-sex marriage is recognized in fewer than 10 states, so this is not a good time for the U.S. Supreme Court to be jumping in either way it’s premature,” [legal scholar William] Eskridge told me. “By 2020, a majority of states will have recognized gay marriage or civil unions most of them by legislative rather than court decisions and at that point, or probably earlier, it will all be over and the Supreme Court will require Mississippi and Arkansas and a handful of others to follow the rest of the national consensus.”