Appearing on Hardball, What’s the Matter With Kansas star Sam Bronwback (R-Kansas) just told us that Americans are angry at the courts because they keep “inserting themselves” in issues where we don’t believe they belong, like Roe, and “changing our understanding” of issues like property in cases like Kelo. What he avoided saying, lest he stray off the message discipline reservation, is that the decision in Kelo he decries as a change was a decision not to overturn the law. Senator Brownback’s problem with the court’s economic jurisprudence, in other words, is that it’s not activist enough.
The conservative establishment vision for the court is not that it leave controversial decisions to be settled directly by the people, but rather that it step back when majorities choose to legislate against civil liberties (especially those of others) , and then aggressively intercede to overturn even those economic regulations which are overwhelmingly popular. Conservatives like Sam Brownback are outraged when the court stops a heterosexual majority from writing homosexuals out of the city’s non-discrimination laws in Romer, but elated when it turns back Congress’ attempt to keep firearms out of our schools. Whereas my reactions, unsurprisingly, are the opposite. A couple days ago I set forth a couple of the reasons I think the Court is justified in blocking the imposition of majoritarian sexual morality in Griswold and unjustified in blocking the majority’s attempt to set common labor standards in Lochner (if you want to have sex without condoms and make at least $5 an hour at work – not at the same time that is – my using condoms doesn’t make a difference to you but my working for $1 does). And Brownback has his reasons for his position as well. But unlike, say, Nathan Newman, he can’t hope to credibly claim that he’s an opponent of “judicial activism” across the board (and unlike – maybe – Finnegan, he can’t claim to be a consistent fan of judicial intervention to limit government either).
As a couple Yalies just showed in a Times piece identifying Clarence Thomas to be the Court’s Activist-in-Chief, the question for most of us is when and to what extent such activism is just and appropriate, and the country would would be better served by a national debate on that question (personally, if the question were all the activism or none of it – which I’m glad it isn’t – I’d go with none so that the left would at least have recourse to the legislature, and a spur to organize).