Order in the Court - New York Times
The New York Times

October 4, 2005

Order in the Court
By
NICHOLAS D. KRISTOF

With another Supreme Court battle looming, this time over Harriet Miers,
let's acknowledge something up front: Republicans are right to complain
about judicial
activism.

One of the most fundamental mistakes that liberals made after World War II
was, time after time, to seek social progress through the courts rather than
through the political process.

It started well, with the Warren Court's unanimous decision in Brown v.
Board of Education to force the desegregation of schools. That decision was
so manifestly
right - and alternative routes to justice so manifestly broken - that court
rulings then became the liberal template for achieving a more humane
society.

The left went to the Supreme Court to achieve a range of victories it could
never have managed through the political process: barring school prayer,
protecting
protesters who used four-letter words, guaranteeing lawyers for criminal
defendants, and securing a right to privacy that protected contraception and
abortion.

It's almost taken for granted on the left that if you support abortion
rights, you must have agreed with Roe v. Wade, or if you support gay rights,
you
must favor court rulings endorsing gay marriage. But court rulings can
constitute fine justice and bad law.

Archibald Cox, the great constitutional lawyer, yearned for social progress
but was troubled by constitutional stretching. For example, when other
avenues
were unavailable, the Supreme Court used the 13th Amendment, which simply
banned slavery, to bar private discrimination against blacks. It was a
worthy
outcome, achieved by torturing the Constitution.

Don't get me wrong: I agree with the spirit of the Warren Court decisions,
and as a kid I worshiped William Douglas the way my friends worshiped Hank
Aaron
(I was an insufferable child). I saw how court rulings could affect our
lives: my high school in rural Oregon banned teachers and students from
having
facial hair, until the A.C.L.U. took up the case - and the school caved.

So, granted, the courts were often the most efficient way to advance a
liberal agenda, and cases like Roe v. Wade now deserve respect as
precedents. But
there were two problems with the activist approach.

The first was that these rulings alienated ordinary Americans who just could
not see how the Constitution banned school prayers but protected
obscenities.
Frustration still seethes at liberals who try to impose their values on the
heartland, and one consequence has been the rise of the religious right.

The second objection is that conservatives can play the same game of
judicial activism to advance a social agenda. Alas, they already are.

"Judicial activism" is usually associated with liberals, but Paul Gewirtz of
Yale Law School has shown that lately conservatives have been far more
likely
to strike down laws passed by Congress. Clarence Thomas voted to invalidate
65 percent of the laws that came before him in cases, while those least
likely
to do so were Ruth Bader Ginsburg and Stephen Breyer. Indeed, Justice Breyer
has written a thoughtful new book, "Active Liberty," which calls for
judicial
restraint and suggests that the best arena for resolving crucial national
questions is legislatures rather than courts.

A growing number on the left are questioning the traditional idea of using
courts to achieve a more liberal society. Justice Ginsburg, in her Senate
hearings,
even criticized the scope of Roe v. Wade for short-circuiting the
legislative process: "My view is that if Roe had been less sweeping, people
would have
accepted it more readily, would have expressed themselves in the political
arena in an enduring way on this question."

In the magazine of the Democratic Leadership Council, Prof. William Galston
warned:

"We must acknowledge that as a party, we have opened ourselves to charges of
elitism. We cannot be an effective party if we substitute litigation for
mobilization.
We cannot be a democratic party if we do not trust the people."

That doesn't mean blindly trusting Ms. Miers or any other Supreme Court
nominee. But it does mean that the main mode for seeking a more liberal
agenda,
such as permitting gay marriage or barring public displays of the Ten
Commandments, should be the democratic process, not the undemocratic courts.
And
it also suggests that the Republicans are dead right to fret about judicial
activism - and we should hold them to their word.

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. Copyright 2005
The New York Times Company

Posted by Miriam V.