Judging for the Powerful

Dahlia Lithwick tries to construct an ideological counter-narrative to the tale of evil liberal activist judges:

Now before my friends out there in the conservative blogosphere go crazy and consign me to the same place they consign, well, everyone I know, it’s important to clarify that there is a principled jurisprudential debate to be had, on the need to constrain the judiciary. There is a need for a thoughtful discussion about how to interpret the Constitution and what judges should take into consideration while doing so, and I dearly hope we will spend the coming weeks having it. My only point here is that most Americans, having been terrified by the specter of “liberal activist” judges legislating from the bench, should be equally terrified at the prospect of “humble judicial minimalists” who are institutionally powerless to do anything at all to protect America’s women, its workers, its minorities, and its environment. I suspect most Americans still want to believe that if they are the victims of discrimination or injustice or brutality, the courts are a place to go for vindication. As suspicious as we may all have become of ideological, activist judges, I imagine most of us would still like to believe that if we were to file something in a courthouse tomorrow, a judge would be available to do something about it.

These are fine points, but I think they concede much too much. The conservative wind of the Supreme Court has shown no hesitancy whatsoever to overturn laws aimed at restraining the ability of business enterprises to influence election outcomes or to enhance the status of racial minorities in America. You could say that the Roberts Court is a court of hypocrites, but I think it would be better to say that it’s a court that’s been consistent, principled, and zealous in its defense of the interests of businessmen, white people, police officers & prosecutors, and other social groups valued by the broader conservative political coalition.

Just as conservative legislative politics isn’t really about free markets conservative judicial politics isn’t really about restraint. The rhetoric is just rhetoric, and the reality is that conservative politics is about conservatism — about entrenching the power and influence of the dominant economic and sociocultural groups.