It's a major criticism, of the judicially active late Rehnquist and (so far as we can tell) early Roberts courts that they are not conservative but radically reactionary. I am not the first person to note that just in terms of willingness to strike down (especially) moderately progressive or in fact traditionally conservative state law, these courts compare to the laissez faire Lochner court of the 1890s-mid-1930s, which (to use the terms of Justice Holmes's famous dissent) believed that the 14th Amendment enacted Mr Herbert Spencer's Social Statics. I actually think Holmes got the role of courts about right -- for most purposes, they should just rubber stamp what the legislature wants.
I rather think that the Warren-Burger courts way have gone too far the other way. (The Burger court now appears to have been in many ways an extension of the Warren court, and reluctance to roll back what those courts did extended through the years of the early Rehnquist court.) Although I personally like the policy outcomes in criminal law and procedure and extensions of rights, e.g., abortion rights, of those courts, I rather think that the courts got ahead of public sentiment in ways that helped to produce an unfortunate backlash on matters that might have been dealt with better legislatively. The one area where the Warren court (in particular) needed to get ahead of public sentiment was the area where it failed most abject;y, in race relations, by failing to follow through with Brown v. Board of Ed.
I'd also note that the Republicans' "packing" the courts has led to very mixed results at all levels. The most liberal members of the liberal wing of the S.Ct. are GOP appointees (Stevens and Souter). A fair number of GOP appointees to the federal appellate courts must be grave disappointments to the reactionaries -- I clerked for one of them, a judge appointed by Reagan to the federal district (trial) court and Bush I to the federal appeals court who is probably the most liberal judge now sitting on that court. The district courts are even more of a mixed bag.
However, to the extent that the "packing" (a bad thing if the other side does it, if you do it, it's not packing, right?) is effective, and overall it is, doesn't that underline that really matters which party gets to nominate judges? I can tell you from close up first hand experience that however disappointing Bill C's Supreme Court nominees have been (and they still tend to vote what we'd consider the correct way most of the time), his appointments to the lower courts were far more likely to be judges whose ideals are more in congruence with ours than the average appointment by any GOP prez, even ones as (this chokes me to say it) liberal as Nixon or Ford.
I'm not going to get into the discussion of whether "we" (whoever that is, LBOsters? "the left," whatever?) should vote Democrat or not, as if it made a difference to anyone how "we," in ll our massive numbers, vote. But it is sort of odd to say, as you do here, oh, the argument that the courts matter is fallacious because the GOP has succeeded in packing the courts with conservatives and now why bother. Doesn't that _concede_ that the courts matter, if not as spearheads of social change (which by and large they cannot and should not be), then at least not as active barriers to such change, and that therefore the party of the Prez that gets to appoint them -- which will not be Green! -- matters too?
That may not be decisive. There may be other reasons, which I don't want to go into, why "we," or you, Steve, or me, should not ever vote Democrat. But the idea that the courts and who appoints judges to them doesn't matter is unsound.
--- "Steven L. Robinson" <srobin21 at comcast.net> wrote:
> The US Supreme Court, and the federal judiciary
> generally, are the most conservative of the three
> branches of government- given their life tenure and
> the charge of their office. That fact was obscured
> by the 25 -30 years of the Warren-Brennan Court when
> we had something that could be called judicial
> reformism.
>
> That changed in the 1980s when Reagan packed the
> federal judiciary and the last survivors of the
> Warren-Brennan era (most of whom were Republicans
> BTW) died off or retired. Nonetheless, many
> liberals and progressives still believe that the
> courts are, or can be, defenders of our
> constitutional, human and economic rights. - such
> naive folks are probably the only people who
> actually took High School civics seriously.
>
> As I alluded to in my comments, that belief
> has always served as the last line of defense for
> supporters of Democrat Party defenders to sell their
> candidtate to the grassroots. If nothing else works,
> talk about the court! Often it succeeds in keeping
> the party faithful in line. However, this recent
> case and the leading role of Stephen Breyer suggests
> the "save the court" claim is just another bill of
> goods.
>
> Given the conservative nature of the court as an
> institution and the amount of time it takes to
> change personnel, the political character of the
> Federal Court system will be likely the last
> institution to feel the effect any meaningful
> social change.
>
> As to voting, I vote Green. SR
>
> -------------- Original message --------------
> From: "Wojtek Sokolowski" <sokol at jhu.edu>
>
> >
> >
> > [WS:] So what do you propose instead? Not voting
> at all?
> >
> > While it is true that the power of business in
> this country is enormous and
> > thoroughly poisonous to public interests and
> democracy, it is not absolute
> > and does create some space for maneuver. And while
> it is true that both
> > political parties are thoroughly servile to
> business interests - for
> > otherwise they would be simply wiped out of
> existence - that servility is
> > not absolute and creates some room for dissent.
> Given that, Democrats are
> > more likely to use whatever little space and
> ability they have to protect
> > public interest against business predators.
> > ___________________________________
>
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