Ed quotes the following excerpt from my Village Voice piece.
"All of the justices are more than happy to push their visions of what would 'establish Justice' and bring about a 'more perfect Union,' however much they disagree about the particulars. In recent years, conservatives have generally prevailed; last week, the stars were aligned for a series of liberal decisions (written by members of the generally conservative majority). The common motif, though, is a highly self-confident group of judges unafraid to exercise their power."
Were I rewriting the piece after reading some of the recent postings on Kennedy's libertarianism, I would include "secure the Blessings of Liberty" in the first sentence.
As for Ed's point about the null set of any justice who belives that both racial preferences and sodomy are subjects for legislative decision, I find that fascinating. There is not a single Frankfurterian on the Court (and FF, of course, lost any commitment to judicial restraint when establishment of religion was involved). Ed's allusion to White is interesting in this regard. I wonder if we'd have more respect for his opinion if he hadn't been so contemptuous of the very idea of a right to "homosexual sodomy," the term that he insisted on using. FF often emphasized that the Court didn't sit in judgment of the wisdom of legislation as a way of indicating that he thought he was upholding some quite atrocious legislation. And Thomas took care to note that he'd vote against the Texas statute were he a legislator. Only Scalia among the three dissenters really seems to enlist in the culture war.
