Interestingly, Mr. Obama’s wish to use the courts as an instrument for economic redistribution echoes the views of one of the leading candidates to replace Justice Souter — Cass Sunstein. In a 1985 article titled “Interest Groups in American Public Law,” Mr. Sunstein, a former colleague of Mr. Obama’s on the University of Chicago law faculty, called for “vigorous . . . judicial intrusions” into the political process on behalf of such causes as income redistribution so as to overcome the supposed domination of the legislative process by “powerful private groups.”
In Sunday’s New York Times story, a former dean of the University of Chicago Law School, Geoffrey Stone, recalls Mr. Obama often expressing concern that “democracy could be dangerous,” since popular majorities may be “unempathetic” about “the concerns of outsiders and minorities.” And “empathy” is the quality Mr. Obama has said he will look for most in a candidate to replace Justice Souter.