Arguing from the future: President Obama's legacy considerations

How will President Obama be remembered?

It's hard to make predictions, especially about the future. - Yogi Berra

Jack Balkin has written a thought provoking piece titled Arguments from the Future'A New Modality of Constitutional Argument. In its context, it is a fascinating piece. For example, discussing Justice Kennedy's upcoming votes on the gay marriage cases, Balkin writes:

I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year's time.  Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?

Mark Tushnet has pointed out to me that he believes that someone like Anthony Kennedy is likely to vote for gay rights in the Marriage Cases'or at least not to vote on the merits against gay rights'because he doesn't want to be remembered as being like Henry Billings Brown, the author of Plessy v. Ferguson. Kennedy would rather be remembered as being like Earl Warren, the author of Brown v. Board of Education, which effectively overruled Plessy.

It's interesting to me that Tushnet (and Balkin?) believe that Justice Kennedy has made his prediction for the future regarding gay rights'the wrong side of history is opposing them. I think he is right but I would contrast his views on gay rights and his likely view on voting rights, where he has given indications that he is more than willing to be the fifth vote striking down Section 5 of the Voting Rights Act. How would that vote look in 10 or 20 years?

In any event, as interesting as these questions are, I think it is even more interesting to consider the question of arguing from the future in other contexts. Consider this passage from Balkin:

There is little doubt in my mind that arguments from the future can be extremely powerful, especially to judges who don't have to worry about keeping their jobs, but might well worry what their legacy will be. Indeed, the less you have to worry about your job security in the present, the more you might tend to worry about the future. (Think about what drives second term presidents, for example.). [Emphasis supplied.]

Yes, let's think about second term Presidents, for example. What can we tell about what President Obama sees as compelling "argument from the future"? What does he believe will be remembered, favorably or unfavorably, from his Presidency and how can he shape his remembered legacy in his second term?

Follow me to the other side to read a few musings on the subject.