Posted by Orin Kerr:
Linda Greenhouse on Using the Courts as An Engine for Liberal Social Change:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1183945545
In yesterday's [1]New York Times Week in Review section, Linda
Greenhouse has an article on the barriers liberals face in
repopularizing the notion of using the courts to enact "profound
social change." If I understand Greenhouse correctly, she approves of
Larry Tribe's idea to try to challenge the existing legal climate now
and to shoot for a horizon of major change in 20 or 30 years. (While
the article is not an advocacy piece directly, I gather that
Greenhouse's conclusion "Now there's a plan" in response to Tribe's
strategy is supposed to signal approval.)
I was particularly interested in something Greenhouse notes more or
less in passing: namely, that there is a relatively clear vision of
the Constitution and the role of the courts that is popular among
liberal activists and academics. It's not unanimous, as Greenhouse
notes -- for example, Cass Sunstein isn't on board. But there's
actually a pretty wide consensus on a lot of issues, as she notes in
this partial list:
It is easy enough to find consensus on a checklist that would
include a robust reading of the guarantees of the Bill of Rights,
including the notion that some rights are fundamental; a
constitutional interpretation not tethered to a search for the
framers� original intent; invigorating the right to privacy to
include personal privacy in the electronic age; restoring the
shield of habeas corpus; and recapturing the government�s ability
to intervene for the benefit of African-Americans and other
minority groups without being constrained by the formal and
ahistorical neutrality that liberals saw as the conceptual flaw in
the chief justice�s opinion a little over a week ago invalidating
two voluntary school integration plans.
By way of contrast, my sense is that there is significantly less
uniformity on these issues among activists and academics who are
conservatives and libertarians. If you attend a Federalist Society
event, for example, you're likely to find a lot of divisions on these
and other questions among Federalist Society members. You'll find
social conservatives, strong libertarians, various strands of
originalists, Lochnerians, legal process Bickelians, Burkean
conservatives, judicial minimalists, John Yoo Article II types, and
many more shapes and sizes and combinations of the above. (Perhaps the
only issue on Greenhouse's list for which there is relative consensus
among conservatives is the racial preferences/affirmative action
question, and even that is hardly unanimous.) I haven't done a poll on
the question, but I do think there is much less of a single "vision"
as to the proper role of the courts among conservative and libertarian
activists and academics.
References
1. http://www.nytimes.com/2007/07/08/weekinreview/08greenhouse.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
