BrianGarst.com

There’s a new epidemic spreading amongst the liberal elites in response to President Bush’s appointments to the Supreme Court. Court followers who recognize Chief Justice John Robert’s style as judicially cautious and resistant to major changes must find the persistent leftist outrage baffling, but that’s because they don’t understand how the statist mind works. To them, Roberts is evil not because of how he interprets law, but by who wins and loses in those choices. In typical fashion the legal merits of the cases Roberts’ has helped decide are irrelevant when compared to the advancement of the left’s agenda. As such, they have gone absolutely haywire following a recent rash of carefully considered and well founded Supreme Court decisions.

Exhibit A: Helen Thomas cries that the Supreme Court is “meaner.” Not surprisingly, the basis for her attack is not sound judicial evidence or argument, but simply raw emotionalism.

Before closing down for the summer last month, the high court tossed out a flurry of decisions that overturned or reinterpreted long-standing liberal precedents.

The court under Chief Justice John Roberts seems intent on rolling back advances in race and gender relations that have helped America achieve a more equal and humane society.

The 5-4 decisions of the conservative court dealt with race, abortion, free speech, church-state relations and a host of other issues. They also showed a pro-business and anti-consumer slant.

The majority justices are running counter to the current trend against right-wing ideologues and a power-grabbing unilateral presidency.

On race, the court apparently has decided to return to the “good old days” when separate was considered equal when it came to racial segregation, a concept that the high court discarded in the 1954 landmark decision of Brown vs. the Board of Education of Topeka, Kan., which desegregated the nation’s schools.

Last week, the Supreme Court junked the Brown rule when it struck down the use of race in school admissions in Seattle and Louisville. Officials had used race as a factor in school assignments in order to build diversity.

The historic Brown ruling paved the way for the banning of segregated public facilities, hotels, restaurants and theaters.

Justice Thomas addressed just this sort of nonsensical demagoguery in his concurrence, previously highlighted here.

Exhibit B: E. J. Dionne has slammed down the statist stave and declared “You shall not pass (another competent jurist)!”

Just say no.

The Senate’s Democratic majority — joined by all Republicans who purport to be moderate — must tell President Bush that this will be their answer to any controversial nominee to the Supreme Court or the appellate courts.

The Senate should refuse even to hold hearings on Bush’s next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

. . .As for the Supreme Court, we now know that the president’s two nominees, Chief Justice John Roberts and Justice Samuel Alito, are exactly what many of us thought they were: activist conservatives intent on leading a judicial counterrevolution. Yesterday’s 5 to 4 ruling tossing out two school desegregation plans was another milestone on the court’s march to the right.

Even after he was confirmed, Roberts was talking about something other than the 5 to 4 conservative court we saw this year on case after case. In a speech at Georgetown University Law School in May 2006, Roberts rightly argued that “the rule of law is strengthened when there is greater coherence and agreement about what the law is.” It’s a shame this quest for broader majorities had so little bearing on the 2007 Roberts-led court.

To call Roberts and Alito activists shows a laughable understanding of recent court decisions. In fact, Roberts has practiced self restraint (I would argue too much) and attempted to craft narrow decisions. The recent term has seen many unanimous decisions. Dionne blames Roberts for the few narrowly decided cases, but the reality is that the more liberal minority is frequently more concerned with outcomes than being good jurists. This is a typical fault of those who believe in activist government and who sees the court not as the arbiter of law that it is, but as a tool to promote desirable policies that cannot get passed by the Constitutionally prescribed means.

Countering Dionne, I propose that we “just say no” to judicial analysis more concerned with promoting specific policies than a particular approach to the Constitution and the law.