Leftists have discovered to their horror that judicial government might not be good for them. Turning power over to judges might be a bad idea. Jurists can work for the other side. They can impose hostile values. They can undermine democracy. Someone needs to do something!
Slate recently hosted a debate among analysts over what to do about the looming threat posed by the horrid angry partisan Brett Kavanaugh. Having dominated the court for decades and relied on it to impose policy outcomes without popular support, they appear shell-shocked.
For instance, Slate’s Mark Joseph Stern warned that the newly confirmed Kavanaugh “will become part of a five-justice-conservative block that will swiftly roll back decades of progressive jurisprudence.” Alas, there is little evidence that any such reversal is likely, or likely to be swift — remember Chief Justice John Roberts’ determination to uphold Obamacare on grounds that even the left didn’t take seriously, that the program was a tax. Nevertheless, the imagined progressive golden age inaugurated by enlightened lawyers is going a-glimmering.
Given the fact that it has taken a half dozen GOP presidents decades to create a seemingly “conservative” majority, which has its own divisions over such issues as executive power and civil liberties, liberals shouldn’t whine. They have long enjoyed the benefits of an activist judiciary which only slowed down in recent years. It seems only fair for democratic change to eventually transform the court.
What most concerns Stern, however, is that the high court will do what it has always done, toss out measures which violate the Constitution: “[A]s soon as Kavanaugh takes the oath, he will plunge the Supreme Court into a legitimacy crisis that could weaken its power over the long term. This crisis will become particularly acute if Democrats retake Congress and the presidency but find their reforms stymied by a reactionary judiciary. The broad consensus over the court’s authority to interpret the Constitution will crumble.”
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