Today's NY Times Magazine cover article deals with the looming battle between American liberals and conservatives over the composition of the Supreme Court. Having secured control of Congress and the executive, the Bush administration is now set on restoring the Court to its original role as the ultimate bulwark against social and economic reform.
Bush is expected to soon name one and possibly two new justices in the mold of Clarence Thomas, favouring "legal doctrines that established firm limitations on state and federal power before the New Deal", writes the liberal legal scholar, Jeff Rosen of Georgetown University. Rosen traces the rise of the informal Constitution In Exile movement to which Thomas and a growing number of younger "libertarian" judges belong, and the threat it poses to the major social and economic reforms introduced since the 30's - reforms which had to be judicially sanctioned by liberal constitutional interpretations giving the federal government the power to regulate social and economic developments.
In particular, conservative Republicans want to ensure the Court sanctions their planned legislative rollback of minimum wage laws, workplace health and safety measures, and trade union rights, social security and other welfare measures, and government regulations affecting the environment, the media and corporate concentration and liability.
Without such sanction, as one conservative jurist told Rosen, "even a Republican Congress.seems unlikely to roll back most post-New Deal programs and regulations (since) much of the regulatory state is politically quite popular." The threat of mass protest is therefore why changes to the institution farthest removed from popular pressure is so important to the Bush administration. It affords the possibility of gradual deregulation by stealth without exposing the system to strain. But Rosen also notes in conclusion that even "when judges try to short-circuit intensely contested democratic debates, from the New Deal cases to Roe v. Wade, they may provoke a fierce political backlash that sets back the movement they are trying to advance. In this sense, even if the Constitution in Exile movement manages to transform the courts before it has transformed the country, it may find that it has won less than it hoped."
The axiom that the courts - no matter what their political colouration - follow rather than lead public opinion may be about to meet its strongest test.
Full: http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html