Tuesday, March 09, 2004

You Say Potato, I say Reactionary Bastion...

The Volokh Conspiracy is engaged in a healthy debate regarding judicial activism and whether both sides of the political spectrum are a bit too willing to let their judges enforce whatever decree they like. I think his "justice" vs. "rule of law" as the divide between liberal and conservative activists is a tad arbitrary, but he probably doesn't want to be so cynical as to say that both sides will throw away all constitutional ideals in the simple name of the issue of the day.

Given how much the Baby-Boomers and subsequent generations have been influenced by the Warren Court, from Brown to Roe, I think most people assume "liberal" when they think about the Supreme Court and its constitutional interventions. Which is absurd. From the establishment of Judicial Review, to Dred Scott, to striking down max. hour laws in the name of "free contract penumbra of the 15th amendment" to its silence during the McCarthy era, the courts have usually been a very strong conservative influence. Which makes sense given how justices are appointed; what's moderate when appointed tends to become conservative thirty years down the line when they are still on the bench. Only the incredible effect of the Warren Court has made us ignore that the Rheinquist Court is in fact closer to the trend of Supreme Courts, and a Scalia Court would still be not uncommon.

Just some thoughts for any liberal who would trust their rights and laws to this branch, rather than democratic accountability.


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