As Orin notes in his latest post in our exchange about the Obama administration’s series of unanimous Supreme Court setbacks, the term “extreme” has several possible meanings. In my posts on the subject, I emphasized the fact that the administration’s positions were “extreme” in the sense that they were rejected by most jurists across the political spectrum and are contrary to all or most widely accepted theories of constitutional interpretation (e.g. – originalist and “living Constitution” theories). Such positions are troubling for a number of reasons, including that they suggest a pattern of constitutional overreach by the administration. As I have emphasized, that pattern of presidential overreach did not begin with the Obama administration. Previous administrations, especially that of George W. Bush, also deserve considerable blame. Note that this definition of extremism is not equivalent to Orin’s suggestion that my view implies that any “profoundly wrong” position qualifies as extreme. For example, I think the Supreme Court’s closely divided 5-4 decision in Kelo v. City of New London was profoundly wrong. But it clearly was not extreme in the sense I have used the term.
Even positions that are extreme in my sense are not always wrong. It could be that the Obama administration has some profound insight into constitutional law that has been overlooked by jurists and legal experts across the political spectrum. Nevertheless, when an administration repeatedly advances extreme theories of federal power, there is at least a substantial presumption that there is something wrong with its approach, one that requires strong countervailing evidence to overcome. So far, I haven’t seen any such powerful counterargument in the case of Obama, or that of Bush before him.
Orin suggests that the positions the administration took in these cases were not extreme in the sense that they were not “unusual position[s] that go… way beyond what the repeat-player litigant would be expected to take.” In many of these cases, this is true (though not always: even Justice Elena Kagan, Obama’s former Solicitor General, expressed incredulity that the administration took the position it did in one of these cases). But this is precisely the problem I have emphasized in my writings on this subject, going back to my USA Today op ed last year. It has become normal for administrations of both parties to latch onto highly dubious – and, yes, extreme – theories of federal power whenever they might help the administration promote its policy agenda or win a case in court. Such behavior is not “extreme” in every possible sense of the word. But that is hardly reassuring.