By “Yes” I Mean “No”

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"By “Yes” I Mean “No”"


We’ve grown accustomed in recent years to thinking of the Supreme Court as having a “left” bloc, a “right” bloc, and a “center” block. In truth, relative to the state of the judiciary in the 1970s and 80s we’ve seen an entire wing — judges who took the kind of positions that Justice Thurgood Marshall and others espoused — to the left of the current liberals essentially vanish. Someone like Justice Kennedy should be seen as representing a center-right viewpoint and the current liberals are a center-left viewpoint. The more robust liberal jurists of yesteryear believed in affirmative economic rights. Barack Obama was on Chicago public radio back in 2001 and said he disavowed those views:

“Maybe i am showing my bias here as a legislator as well as a law professor, but you know, I am not optimistic about bringing about major redistributive change through the courts,” he said. “You know the institution just isn’t structured that way. Just look at very rare examples where during he desegregation era the court was willing to, for example, order … changes that cost money to local school district[s], and the court was very uncomfortable with it. It was hard to manage, it was hard to figure out, you start getting into all sorts of separation of powers issues in terms of the court monitoring or engaging in a process that is essentially is administrative and takes a lot of time. The court is not very good at it, and politically it is hard to legitimize opinions from the court in that regard. So I think that although you can craft theoretical justifications for it legally, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts, I think that as a practical matter that our institutions are just poorly equipped to do it.”

This should all be clear enough, but a lot of the right-wing, led by the McCain campaign and the Drudge Report, have decided that it would be good to pretend that Obama said the opposite of what he said. So we get a series of posts by Mark Levin dedicated to that idea. But the text is clear — Obama thinks you could come up with a rationale for affirmative economic rights if you wanted to, but that it would be a bad idea to do so. On this topic, the right would do well to take “yes” for an answer.

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