Tuesday, February 7, 2012

A Word on the Supreme Court and the Old "Strict Constructionism" Canard

As the U.S. Supreme Court readies itself to decide major cases about Obama's health care law, Arizona's notorious immigration law, and the constitutionality of the Voting Rights Act, a recent editorial in the New York Times focuses needed attention on the connection between the Supreme Court and mainstream politics.  According to the Times:
Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.
This is not a new story, not by any means, but its lessons are worth remembering: just as the law thrusts itself into politics, it is also true that "politics shape the court." 

This is an important reminder, especially in an election year, when conservative candidates will undoubtedly intensify their promises to nominate "strict constructionists."  The hypocrisy is palpable; judicial activism knows no one party or ideology.  But one thing is true: conservatives have skillfully managed to set the terms of the debate.  This means that a decision striking down the VRA, for example, would be seen in conservative quarters as a triumph of our new federalism, not as an activist response to the work of Congress; yet a decision upholding the health care law would similarly be seen as a constitutional failure to uphold federalist principles.  This is clearly nonsense.  

I am not sure what it will take to alter the terms of the debate.  But we should not stop trying. 

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