July 9, 2007

Some liberal lawprofs, along with writers at the New York Times and elsewhere who tend to channel their views, have been beating the drums for the formation of a popular movement to demand the appointment and confirmation of judges more disposed toward liberal activism than, say, Roberts and Alito. Ann Althouse thinks she's spotted the flaw in their reasoning:

This grand vision for a Court that would expansively and actively enforce rights will be seen by present day voters as a political proposal. If people today really want that vision, they can get it from the political branches. They don't need a reactivated liberal Court.

The liberal lawprofs' dream seems to be that you could get people to believe that the expansive vision of rights is the proper way to do constitutional interpretation and they'd be willing to go along with that even if they didn't want these rights enough to support enacting them into law through statutes. But what are the chances that people today would allow liberal academics to convince them of such a thing?

P.S. And this priceless Orin Kerr summary of the formula for an Adam Cohen commentary: "to condemn conservative decisions striking down legislation as outrageous activism and conservative decisions upholding legislation as abandonment of the judicial function, with as much discussion of Jim Crow and Lochner as will fit in an op-ed space." Ilya Somin tag-teams on the same piece.