Posted July 9th, 2007 by lex
In this week’s Economist magazine, US political editor “Lexington” – it’s almost perfect, that name – points out how the Supreme Court’s recent conservative tilt may actually save the liberal movement from its most self-destructive tendencies, including a marked preference for skipping past the democratic process of dialogue and open debate in favor of judicial imposition of “preferred” solutions:
For decades, liberals have relied on the courts to push through some of their most cherished policies…
But the shift will also bring opportunities for liberal America. Its reliance on the court has been a mixed blessing. Liberals have often failed to build public support for their beliefs: why bother to persuade people when you can rely on activist judges? They have also become the prisoners of a purism that compels them to take beliefs to their logical conclusion even if the consequence is to offend ordinary voters (support for a woman’s right to choose becomes support for abortion up to the moment of delivery). The abolition of school prayer and the imposition of school busing fuelled a conservative movement that fed on populism and resentment.
The Roberts court could well prevent liberal America from indulging in yet another self-damaging act of judicial overreach—discovering a constitutional right to gay marriage (something Massachusetts’s highest court has already done). Sensible gay-marriage advocates will now concentrate on winning their battles in the court of public opinion and the chambers of the legislature. Which, surely, is how it should be.
No argument here, but UWisc law prof Ann Althouse parses the thinking of a court critic who sees things differently:
Recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans. That’s one hell of a snappy phrase.
Actually, the reason that item looked so awkward on the checklist is that it’s different from all the other items (a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus) Greenhouse had to strain to try to make it not look different. Everything else is about expanding constitutional rights, and that one’s about narrowing rights. The way you “recapture” “ability” (AKA power) for the government is by cutting out the rights.
For my own part, “a constitutional interpretation not tethered to a search for the framers’ original intent” looks a lot like playing tennis without the net: Once you grant the judiciary the ability to change what the Constitution means through iterative voyages of personal discovery, you’ve gone a long way towards eliminating the constitutionally enshrined privilege of the people’s house to do the people’s will.
In any case, there are two ways of bringing the country along where you’d like them to go: You can educate, persuade and openly debate those who lingeringly disagree with you, or you can count on an unelected and largely unaccountable “council of philospher kings” in Lexington’s words to skip to the desired end.
Speaking as a voter rather than a member of a star chamber, I know which way I’d prefer.