Liberals, The Supreme Court and the 2008 Election

The recent close of the Supreme Court's term has left a bitter taste in the mouths of the nation's liberals. As the New York Times' Robin Toner writes:

There is no doubt about the unhappiness of liberals with the current court, which now bears Mr. Bush’s unmistakable imprint. They were reeling last week as the court finished up its first full term with Mr. Bush’s appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. It was a session marked by a sharp turn to the right in a series of 5-to-4 decisions, from upholding a federal ban on a type of abortion to limiting school districts’ ability to use racially conscious criteria to achieve or maintain integration.

Of course, for most liberals, the bitter taste is the fact that most of them think Chief Justice John Roberts lied to them about his respect for precendent, his plan to not overreach or try to legislate from the Bench. Of course, one's personal outlook tends to taint how one looks at the Supreme Court action. The Court had a number of difficult cases this year, fraught with various political overtones.

Since the Warren Court era, liberals have viewed the Courts as relatively friendly turf to the advancement of their agenda and largely they were successful at that time not because the Courts were full of liberals, but because their agenda was focused on individual rights. At a time when the Nation was coming to grips with how poorly we treated some classes of individuals, with the memory of the Holocaust, among other things, fresh in our minds, the Warren Court and the liberal legacy of FDR appointments to lower courts, we had a judiciary that was perhaps more intently focused on individual rights and liberties than at any other time in history. But during the Burger Court and Rehnquist Court eras, there came a time when the Judiciary began to look at how the law had been injured by individual rights. Certainly, individual rights still play an important role in the judicial process, but the courts since the Warren era have looked long and hard at the government's role in those rights and not surprisingly, the government's role in promoting the rights of some groups has an arguably adverse impact on the rights of other groups. In a sense the "conservative backlash" to the Warren Era is actually a continuation of that Court's focus on individual rights. If the Warren Court was about raising up the rights of the minority and downtrodden in our society, the Rehnquist and now Roberts Court's are as much about enforcing the Warren concept of equal rights for everyone as any decision of Earl Warren and his peers. If the liberals have spent decades trying to show that everyone should have the same rights, then everyone has the same rights and it is up to the Courts to respect those rights.

What is noteworthy, as Toner points out, is that Liberals are starting to get the message about a judiciary that can be perceived as hostile to their agenda.

In other words, liberals were often warning about potential dangers to their agenda from a changing Supreme Court. The issue was not a hypothetical for conservatives, who felt devastated, over the years, by decisions from previous courts, most notably Roe v. Wade, the 1973 case declaring a constitutional right to abortion.

Now, some Democrats and their allies say they are hearing hypothetical worries turn to outrage, and not just in the Democratic cloakroom of the Senate. “The right has always been energized on this issue,” said Mr. Schumer. “The recent decisions have now energized the left.”

The liberal outrage over the most recent term of the Supreme Court is not as much about the decisions of the Court, as it is about the realization by the left that resorting to the Judiciary to advance their agenda is a poor strategic and tactical choice. The Roberts Court will provide some fodder for the 2008 elections, but I am not sure that the impact long term on the Court will be that much.