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Good! Harry ******************************* of 818
352-4141 ******************************* From:
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[mailto:[EMAIL PROTECTED] On
Behalf Of Karen Watters Cole A little historical perspective on a significant
moment that is approaching the stature of the War of Roses. kwc Role Reversal and the
High Court Commentary by Prof. Cass R. Sunstein, Debates about the Supreme Court have become
eerily reminiscent of those a half-century ago. Having acquired power,
conservatives are showing the same high ambitions as liberals did in the
court's most pivotal period. In the 1930s liberals despised the exercise of
judicial power. For over two decades, an activist Supreme Court had proved an
obstacle to progressive legislation, including laws covering minimum wages,
maximum hours and child labor. Much of Franklin D. Roosevelt's New Deal was in
constitutional jeopardy. Led by professor Felix Frankfurter and Attorney
General Robert Jackson, liberals argued for judicial restraint. They contended
the Supreme Court should not seize on ambiguous constitutional provisions to
strike down legislation. They objected that the federal judiciary was engaged
in politics, not law. They argued that the Constitution should not be
interpreted to entrench political commitments. In the late 1930s the Supreme Court capitulated
to their arguments. But by the late 1940s a deep fissure had
developed among liberal activists and By the early 1970s few liberals believed in
judicial restraint. Frankfurter and Jackson seemed betrayers of the liberal
cause. Black and Douglas were heroes, "movement judges" alongside Earl
Warren, William Brennan and Thurgood Marshall, eager to use judicial power for
liberal ends. Some people seemed to think the Constitution should be
interpreted to fit the views of the Democratic Party's extreme wing -- as in
the suggestion, made seriously, that the Constitution created rights to
welfare, food, housing and even employment. Conservatives started to sound like New Deal
liberals. President Richard Nixon argued that the courts should back off.
Attacking ambitious desegregation plans and decisions protecting criminal
defendants, he insisted that the Supreme Court should respect the judgments of
the elected branches. President Ronald Reagan spoke in similar terms. Two of Reagan's appointees, Sandra Day O'Connor
and Anthony Kennedy, played a role closely akin to that of Frankfurter and
Jackson. They showed little enthusiasm for the liberal rulings that preceded
them. But they were skeptical of using the Constitution to promote conservative
goals. They were not "movement judges." Republican appointees William Rehnquist, Antonin
Scalia and Clarence Thomas have been far more ambitious. Like Black and
Douglas, they have been willing stand against the elected branches of government.
They want to restrict Congress's power, heighten the protection given property
rights and strike down most affirmative action programs and campaign finance
restrictions. Among many conservatives, O'Connor and Kennedy
are now seen as infidels. Like their liberal counterparts in the 1970s,
conservative activists show no interest in judicial restraint. Some
conservatives argue that the Constitution should be interpreted to invalidate
key provisions of the Clean Air and Occupational Health and Safety acts, to
strike down restrictions on commercial advertising and to eliminate the Federal
Communications Commission in its current form. If they can appoint judges who
will entrench views of the Republican Party's most extreme elements, well, so
much the better. To be sure, there are differences between the
liberal shift in the mid-20th century and the more recent movement in
conservative thought. Conservatives have a distinctive theory for interpreting
the Constitution. They believe in the "original understanding" of the
document, and they aim to recover what they sometimes call the Lost Constitution or the Constitution in Exile. The liberal activists of the 1970s usually made
no pretense to rediscovery. But it would be a neat coincidence if the original
understanding of the Constitution matched the views of the GOP's extreme wing.
As it happens, there is no such match. Nothing in the original understanding
justifies the movement to strike down affirmative action programs, to eliminate
the FCC or to protect property rights against environmental regulations that
diminish the value of property. What lessons can be drawn? People will use power
when they have it -- and when a particular side controls the courts, the idea
of judicial restraint will go out the window. But history is full of
surprises, and The writer is a
professor at the University of Chicago Law School and author of "Radicals in Robes: Why Extreme Right-Wing Courts Are
Wrong for http://www.washingtonpost.com/wp-dyn/content/article/2005/07/08/AR2005070801688.html |
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