Surprise! Conservatives Support Conservative Activism by Supreme Court
Blogger Big Tent Democrat at TalkLeft makes a great point this morning, writing that the Supreme Court under Chief Judge John Roberts has been an “activist” court — actively striking down legislation that allows for the use of racial classifications in some circumstances to remedy past discrimination — and that’s been A-OK with conservatives.
In fact, conservative columnist Stuart Taylor warns his compatriots in the opening of this new piece in the National Journal:
Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old “liberal activist” slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court’s conservatives are as activist as the liberals, especially on racial issues.
Taylor doesn’t think that’s a bad thing, because Taylor thinks that the court is just reflecting the fact that “Americans want racially preferential affirmative-action programs abolished.” But Taylor seems to forget that the whole point of the Supreme Court is that it’s a counter-majoritarian institution, designed to decide what’s constitutional, not what’s popular. That’s how we got rid of things like enforced racial segregation in schools, remember?
Anyway, Big Tent Democrat also points out the hypocrisy of conservatives now supporting the “judicial activism” they’ve long decried just because now it’s working in their favor.
In fact, Taylor now seems to question the very definition of the term, writing:
[I]s it judicial activism when the justices stretch the Constitution to go over the heads of the political branches — which are dominated by special-interest lobbies — not to overrule the voters but rather to give them what they want?
Wow, that’s a new one. So now the court is supposed to act to correct the distortions in the political process by using their insight as insulated Supreme Court Justices in Washington to discern the true desires of the American people?
It’s a whole new twist on “separation of powers.”