DAVID NEIWERT'S POST AND THE JUDICIARY

David Neiwert has a post here, which could be titled, "why I am not a conservative (anymore)." It's a good post. I had one main thought after reading it:

One of the things that amazes me about the rhetoric of conservative movement types nowadays is that they still have the audacity to continue to use the trope of "liberal activist judges," thirty-five years after there has been a genuine liberal in the White House to do any appointing. It's one of those time-worn phrases that has been used to whip up good old American populist resentment. Judicial power is an important issue, to be sure. Still, take a look just at the Supreme Court's federalism jurisprudence, or the more restrictive turn in takings law, or the area of sovereign immunity. Take a look at the landmark cases from last term, at Cornell's LII site, for example, here. On affirmative action, the Court went both ways, striking down one plan (Gratz) and upholding another (Grutter). Note the decidedly non-liberal result in Woodford v. Garceau, where the Court took the 9th Circuit to task for being too lenient in granting exceptions to the procedural restrictions of the harsh 1996 Antiterrorism and Effective Death Penalty Act, and the decidedly non-liberal result in the three-strikes case (Lockeyer v. Andrade), as well as the refusal to consider challenges to a harsh Sixth Circuit decision under AEDPA (Abdur'Rahman v. Bell, case dismissed as improvidently granted). Note the arguably pro-corporate decision in the copyright case Eldred v. Ashcroft (also pro-Congress, to be sure, but we're not trying to rebut a very subtle thesis here so we don't need to be too clean with the evidence). Note the ruling upholding restrictions on speech in the interest of protecting kids from pornography (U.S. v. American Library Ass'n) and partly upholding restrictions on speech in the interest of punishing cross-burners (Virginia v. Black). Finally, note the decision allowing detention of immigrants (Demore v. Kim ).

On the whole, there were some high-profile cases that fell in what might broadly be termed the liberal direction (Lawrence, invalidating Texas's criminal prohibition on sodomy, and Moseley v. Victoria's Secret, overturning a Sixth Circuit ruling in favor of Victoria's Secret -- you might class this as "liberal" because the result favored the underdog and a contrary ruling would have broadened trademark protection and threatened non-corporate speech). To be sure, it is often hard to classify cases as liberal and conservative or even activist and non-activist. Still, looking at last term as a whole (and without even getting in to Bush v. Gore, which was a watershed for Neiwert), it's really hard to see something even resembling a pale shadow of a "liberal activist Supreme Court." And if you get into the circuit courts -- such as the notoriously conservative 4th Circuit -- it would be hard to claim that they are "liberal activists," unless your jurisprudence is positively antebellum. Even the Massachusetts Supreme Judicial Court's decision in Goodridge was close (4 to 3), and other state high courts across the country have reached contrary results (something we don't hear too much about).

The trope of a "liberal activist judiciary" is tired. Repeating it over and over does not make it true. But it is part of the inertia of political movement rhetoric that it gets used long past its usefulness for describing the world.

MORE: For a short survey of the Rehnquist Court's decidedly non-liberal-activist work, see this speech by Rogers Smith. Here's his main conclusion:

Overall, a strong case can be made both that the Rehnquist Court’s rulings express the dominate political trends of the last two decades and that, accordingly, they have helped to stall and in some regards reverse governmental efforts to transform substantially America’s entrenched patterns of racial, gender, and class inequalities, in ways that have strengthened state governments versus the national government domestically while preserving great national discretion in foreign policy matters.