Tuesday, November 23, 2004

Stephen Breyer -- by way of E. J. Dionne -- hits the nail on the head.
Conservative politicians, including President Bush, say that they oppose judges who "legislate from the bench" and that they hope to fill the judiciary with "strict constructionists." That sounds good, because we want democratically elected politicians, not judges, making the crucial decisions. Yet, at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves.

That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.

This new conservatism is actually a very old conservatism. It marks a return to the time before the mid-1930s when judges struck down all sorts of decent laws -- for example, regulating the number of hours people had to work without overtime pay -- reasoning that such statutes violated contract and property rights. Such rulings denied legislators the ability to resolve social problems and make our society more just. The pre-New Deal judiciary that many conservatives are now trying to restore was the truly "imperial judiciary."

The new conservative judicial activism is a greater threat to our democracy than the prospect of some future court striking down the Roe v. Wade decision on abortion. If Roe is lost (and I doubt it will be), states will still be free to pass liberal abortion laws. But if extreme conservative judges limit the authority of Congress and state legislatures to pass environmental, civil rights, labor and consumer laws, our democracy will be less robust, less effective and less just.


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