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May 24, 2005

Cutting a Deal for Real Judicial Restraint

AF writes in comments:

the battles to prevent the courts from moving further to the right are worth fighting. You acknowledge this in the last sentence of your column. What then, concretely, is your disagreement with the Democratic party's approach to judicial politics?
Here's the big difference. Not only do I think the bad court decisions hurt progressives, I think "good" ones like Roe v. Wade hurt us by demobilizing activists.

So if I was leading the Democrats, I would offer a very different deal to the Republicans. Instead of a procedural fix on filibusters, I'd offer a substantive deal. End judicial activism, for real. Make the courts less important politically, so the stakes in nomination fights would be lower. Encourage the nomination of judges willing to pledge to uphold laws passed by elected representatives unless they clearly abuse state power.

On substance, here's what both sides would trade off. Dems would give up Roe v. Wade and Lawrence (striking down of sodomy law in Texas) and so on, while conservatives would give up Morrison (the decision striking down the Violence Against Women Act), the Dale v. Boy Scouts decision (decision exempting Boy Scouts from NJ gay rights legislation), all "federalism" decisions undercutting application of civil rights laws to states, all recent "takings" decisions, all corporate "free speech" decisions, all decisions striking down affirmative action, and so on.

I doubt the conservatives would take the deal, but it would highlight that the real judicial activists these days are rightwing judges striking down a host of progressive laws.

Real judicial restraint would be a major change but it would dial back the politics surrounding judicial nominations.

I actually think that the Supreme Court Justices themselves may be feeling that this is needed. As I noted earlier, the Court yesterday went out of its way to explicitly highlight the value of deferring to legislative decision-making.

Just as the rancor over the Supreme Court in 1937 led the Justices then to back off from a strong political role, we may be starting to see a similar phenomena with the Court today. And the more progressives could encourage that direction through promoting a broader social and political commitment to judicial restraint, the better off we would be.

Posted by Nathan at May 24, 2005 09:35 AM