Sago Boulevard

Sunday, September 04, 2005

A Liberal Hoping for Judicial Restraint

What kind of conservative is John Roberts? That's the question on the minds of Senate leaders anticipating the confirmation hearings for the Supreme Court nominee. Kurt Andersen, a self-proclaimed liberal Democrat, argues that liberals should be hoping for genuine judicial restraint from Roberts. In the '60s and '70s, Andersen writes, liberal jurists set a dangerous precedent by their activism that has come back to haunt them. The merits of judicial restraint, of checks and balances are often most profoundly understood once power has changed hands. He offers an insightful analysis of the jurisprudential consequences of the liberal courts of the previous generation. I recommend reading the wrote article. Some highlights:
Now that the era of activist liberal judicial hegemony is over, we liberals have to hope that Roberts and Bush’s other appointees really are devoted to judicial restraint—the way liberals were not, back in the day. It’s chastening to see the right, now ascendant, behaving in ways our side used to behave. So many shoes are on the other foot. I grew up understanding the filibuster as a last-ditch means for segregationists to veto civil-rights legislation; now liberals cling to it as a last-ditch means to veto judges antagonistic to civil rights. “States’ rights” was cynical code for southern segregationism, yet now we beleaguered liberals sincerely insist on any state’s right to legalize physician-assisted suicide, gay marriage, medical marijuana—and, if Roe v. Wade were to be overturned, abortion.
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As far as jurisprudence goes, however, it turns out that consistency and adherence to precedent are the things that protect us from being tyrannized by our opponents when they’re in power. Maybe Roberts is still more of a Daniel Webster pragmatist than a Thoreau-Emerson Utopian, and considers himself—as he wrote in his prize-winning Harvard paper on Webster—“a disinterested . . . man of wisdom who continually worked with others of his sort to resolve any controversy which threatened national harmony.”