The Constitution In Exile Appears

by Jonathan Chait | January 29, 2010

The most important aspect of the Supreme Court's invalidation of campaign finance laws may be that it signals a new step into judicial activism. Of course, the slogan of "judicial restraint" is the central promise of Republican judicial nominees, but it's fairly clear that this idea only applies when liberals hold the majority on the Court. Linda Greenhouse has a terrific piece today:

Three years ago, after Chief Justice John G. Roberts Jr. led the Supreme Court to the brink of overturning a few precedents but then blinked, a frustrated Justice Antonin Scalia accused the chief justice of “faux judicial restraint.”

It was foreseeable then that something would have to give: either the faux or the restraint. Now we know. Goodbye to restraint.

The whole thing is very worth reading. If you want more perspective on the potential consequences of conservative judicial activism, the classic text is Jeffrey Rosen's 2005 New York Times Magazine article on the "Constitution In Exile" movement, which seeks to revive the pre-1937 Supreme Court that wantonly struck down activist legislation. The ultimate goal is that, even if conservatives lose politically, they will have a permanent backstop in a Court that interprets the Constitution as mandating its preferred vision of economic policy.

Source URL: http://www.newrepublic.com//blog/jonathan-chait/the-constitution-exile-appears