First principles and the court
Sam linked to E.J. Dionne’s Washington Post piece which, as Sam writes, tends to “justify our existence.” I’d first like to thank Mr. Dionne for this affirmation.
Dionne’s argument is something many liberals/progressives have been thinking for quite a while. The Supreme Court has moved substantially to the right in the past 20 years. The court’s most liberal current members would be unrecognizable as such to the Warren court. Dionne argues that this is due to a shift in first principles; the idea that the court must avoid “judicial activism” is now the guiding principle.
Dionne’s arguement is a familiar one, and one to which I won’t disagree. “Above all,” Dionne writes, “it should become clear that the danger of judicial activism now comes from the right, not the left.” Dionne calls for liberals to start making this case more publicly.
I wonder, however, if the more sage advice might be for liberals to abandon the rhetoric of judicial activism entirely. That term has been thoroughly appropriated by conservatives over the last 20 years; it’s hard to imagine liberals winning on convincing the public that the activist tables have been turned.
If liberals truly want to win this debate, they should make an affirmative argument to first principles — that the role of the court is to fight for justice, ensure fairness, etc. Dionne is right that Citizens United can likely be an important campaign talking point for liberals. However, I don’t think the most salient point will be that the court overturned precedent that the public hasn’t heard of; it will be that, substantively, the court has increased the role of corporations in politics.
-John
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