In the "Possibility of Interpretation", Bruce Ackerman investigates the Brown and Griswold cases, rejecting the hypothesis that they represented examples of constitutional politics (i.e. that the Justices intended to impose their own moral vision while lacking a legitimate interpretative approach to the text of the Constitution) and advancing the argument that the two cases stand as a "continuation of the project of synthetic interpretation begun in the aftermath of the Civil War in the Slaughterhouse Cases and redirected in New Deal opinions like Carolene Products". (p. 132).
Reasons for rejecting the political interpretation:
- The decisions did not come at a time where there was substantial popular mobilization for change; on the contrary, the period when the decisions were enacted was characterized by moderate political engagement: "after a generation of extraordinary involvement in public life, precipitated by economic crisis and world war, the American people were returning to more normal levels of political engagement". (p. 134)
- The post hoc popular support to end segregation does not imply the decision was political:
1. Alexander Bickel's efficacy argument: the court lacks the capacity to ensure eventual public consent.
2. Inconsistency with the principles of dualist democracy: "not the special province of judges to lead the People onward and upward to new and higher values. This is the task of citizens [...]". (p. 139).
Reasoning in support for the interpretative character of the opinions:
- The enduring popular support for an activist government throughout the New Deal era constitutes a third stage of constitutional law-making
1. Unlike the Founding and the Reconstruction, this change is implicit. However, since the Founding and the Reconstruction were procedurally irregular in their own right, the legitimacy of each of these periods of constitutional reform is to be found in popular support and mobilization (the method of interpretation here is popular constitutionalism).
2. If before the New Deal the paradigmatic reading of the constitution limited congressional power and protected liberty of contract, after 1937 the government is awarded substantial powers to regulate. This is because government comes to be recognized as an "active contributor to the process by which groups made their 'choices' in American society". (p147).
- Given the new role of the government in society, public schools gain a new status, as a legitimate instrument for the state to shape societal "choices", including those regarding the meaning of social segregation. Thus, according to Ackerman, "within the new activist order, the schoolchild's sense of racial inferiority has become a public responsibility, not a private choice". (p. 150).