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Brown’s Birth, and Death

Justice Earl Warren did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Brown v. Board decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Warren wrote the Brown decision, it took the segregation issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

Instead, Warren and his colleagues invented a right to integration, overturning more than a half-century of established precedent, and imposed a solution more extreme than the policies of just about any other comparable nation.

Southern voters became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

The fact is, the entire country is trapped.  Earl Warren and his colleagues suppressed that democratic “integration” debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Brown v. Board is overturned, politics will never get better.

Hey, can I have David Brooks’ op-ed slot when he goes on vacation?

UPDATE:  Please please give me Brooks’ column for a couple of weeks!  I can churn this stuff out with machinelike efficiency!  Watch:

Justice Earl Warren did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Loving v. Virginia decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Warren wrote the Loving decision, it took the miscegenation issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

Instead, Warren and his colleagues invented a right to miscegenation that existed nowhere in the Constitution, and imposed a solution more extreme than the policies of just about any other comparable nation.

Southern voters became understandably alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

The fact is, the entire country is trapped.  Earl Warren and his colleagues suppressed that democratic miscegenation debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Loving v. Virginia is overturned, politics will never get better. 

Posted by on 04/21 at 08:04 AM
  1. Hey!  This is fun!  Can I try?

    (With a little inspiration from Tom DeLay...)

    Chief Justice John Marshall did more inadvertent damage to our democracy than any other 19th-century American. When he and his Supreme Court colleagues issued the Marbury v. Madison decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

    When Marshall wrote the Marbury decision, it took matters of constitutionalisty out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises on constitutional issues reflecting the views of the centrist majority that’s always existed on them. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate. . . . .

    Posted by  on  04/21  at  09:28 AM
  2. Testify!

    Posted by Jeremy Osner  on  04/21  at  09:28 AM
  3. Wow!  This is fun.  But there’s no reason to confine it to the distant past, either!  Let’s try this:

    Justice Anthony Kennedy did more inadvertent damage to our democracy than any other 21st-century American. When he and his Supreme Court colleagues issued the Lawrence v. Texas decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

    When Kennedy wrote the Lawrence decision, it took sodomy out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises on sodomy reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

    Instead, Kennedy and his colleagues invented a right to sodomy, and imposed a solution more extreme than the policies of just about any other comparable nation. 

    Posted by Michael  on  04/21  at  09:33 AM
  4. And here again, we witness a parliamentary objection raised against an issue of deep-rooted philosophical repugnance to many conservatives. Why do they keep doing this instead of saying what they really mean? If I truly believed that abortion = murder, or that it’s the South’s God-given right to keep black oppression codified, I wouldn’t even bring up procedural minutiae--it wouldn’t do justice to my passion on such serious issues. If you’re gonna attack “judicial tyranny”, it needs to be done in a balanced, non-partisan way; and if you want to push ideology, don’t pussyfoot around. All this conflation between the two is damn disingenuous.

    Posted by  on  04/21  at  09:38 AM
  5. It may be disingenous, but it gets the proles out in front of the state capitals marching and screaming about how they’re being oppressed and hurt by tricksy and bad evil hobbits^D^D^D^D^D^D Democrats.  (whoops, sorry about that . . )

    There’s a journalist in the technology sector named John Dvorak who is by all rights an amazingly effective troll.  He likes to beat on Apple & predicts its collapse, regards Microsoft as a semi-benevolent leader, and keeps trying to concvince his readers that open-source software will die or be permanently regulated to a quaint little portion of the IT world.  Readers will then go nuts and forward his articles to friends, people blog and link to him calling him out for his stupidity, & ultimately Dvorak’s publisher’s sales rates go through the roof.

    Birds of a feather, Dvorak and Brooks, those two are.  Thrown in Tom Friedman and you’ll have a trifecta.

    Posted by  on  04/21  at  09:59 AM
  6. I’m running off to my law office, but I have to tell everyone. Michael’s parody is often promoted as a serious argument by right wing African-Americans such as Thomas Sowell and Walter Williams.

    They say, if the court hadn’t intervened, capitalism and local governments would have done a better job of intergration.  When cornered with the fact that those two forces had not done a good job up till then, they sometimes say, “Well, that is because Plessy v. Ferguson, in 1896, enforced segregation.” Um, so, what was the point they were trying to make about why that should not have been overruled?

    OT:  This transcript of Nancy Solderberg on Jon Stewart is enough to make one cry:

     http://www.opinionjournal.com/best/?id=110006362

    Why don’t they put Berube on Stewart to explain why the US invasion of Iraq made things more difficult for open society advocates in Iran and that Hezbollah has been continuing its march toward domination within Lebanon for the past three years--with the Syrian PM’s assassination being more of a symptom of internal strife than anything the US did in Iraq.

    And we notice how the Mexican government has felt the need for sunshine and democracy in their treatment of the mayor of Mexico City, haven’t we?  Ah, democracy is in the air, starting in Iraq, where the insurgents continue to wreak havoc, women are forced, culturally and slowly by law, to wear veils and take a big step backwards in Baghdad, and where terrorist recruits are on the rise, per the now pro-Bush CIA. 

    This is certainly the right wing moment in the USA…

    Posted by  on  04/21  at  10:11 AM
  7. I was gonna be the first person to miss the satire, but a two-day bout with food poisoning has scrambled my brains.  Just pretend this is semi-amusing.

    Posted by Doghouse Riley  on  04/21  at  10:20 AM
  8. Michael,

    Unfortunately, as your sample Op-Ed does not contain one iota about natalism, you will have to revise and resubmit. We eat up all that stuff about white, church-going, wife-stayin’ home, mid-western Americans spittin’ out 5-8 kids while all you eastern elites are out hatin’ families.

    Hope this helps,

    Bulworth

    Posted by Bulworth  on  04/21  at  10:25 AM
  9. Aaaah, we don’ need no stinkin’ courts!

    Posted by  on  04/21  at  10:55 AM
  10. Look at Virginia’s “Massive Resistance” model for a common sense, pratical and sustainable solution to the thorny problem of integration.  State legislatures - laboratories of Democracy.

    Posted by corndog  on  04/21  at  11:14 AM
  11. Oh man. Thank you, Michael, for writing that. I looked at the Brooks op-ed this morning and wanted to puke. Your response is more effective than any angry letter that I could have fired off to the times.

    Whether or not you agree with the reasoning or results of Roe, you can’t attack it for taking power away from the legislatures and the “centrist majority.” That’s the courts’ job, because sometimes the legislature and the people are wrong. Otherwise we’d have the tyranny of the majority (i.e. if 55% of the people think it’s right, what can be wrong?).

    For someone who goes to great pains to make himself appear thoughtful (albeit in a wonkish way), Brooks can be a real freakin’ idiot sometimes.

    Posted by  on  04/21  at  11:28 AM
  12. Thanks, Brian.  I was actually going to take the day off (I’ve got a mess of real campus work to do today), but I read the Brooks thing and couldn’t believe it.  I especially like his suggestion that if we give in on Roe, the radical right will chill out and become civil again.  I also want to know who are the “absolutist activists” in the Democratic party—you know, those radical pro-abortionists who are demanding that everyone have an abortion at least once.

    Mitchell, thanks for the reminder about the real anti-Brown crew.  And while we’re operating without illusions on this judicious blog, let’s also remember that despite what Brooks says about the “legitimacy” of legislatures as opposed to courts, conservatives don’t actually invest legislatures with legitimacy when legislatures come to conclusions that conservatives dislike.  Witness, for example, Dinesh D’Souza’s call for the Civil Rights Act of 1964 to be repealed.

    Posted by Michael  on  04/21  at  11:36 AM
  13. Sadly, this is no satire. It is merely another item, hidden but implicit, in the agenda of the radical right zealots who are driving the state toward theocracy. I will repeat here the comments I made earlier on DKos:

    Brooks is trying to seduce his readers: “If only we get rid of this evil ‘Roe v. Wade,’ all will be right once again in our fair land.” It’s a blatant pitch to the citizen who is no activist, doesn’t have any vested interest in abortion rights, and is dismayed at the vicious cesspool that politics and civic discourse have become.
    And therein are two far more fundamental lies to Brooks’ argument.

    Lie #1: The increasing threat of violence and accompanying repression in our politics is caused by progressives and their agenda, not by the fanatical drive to shred our Constitution by radical right zealots.

    Lie #2: This one issue of abortion rights is the lynchpin of our woes, and if we cave on this one the zealots will be satisfied.

    The radical right zealots will never be satisfied until they have established a theocracy (undergirded by the plutocracy for which people like Brooks labor).

    And even this is not the endgame.

    This is a fight that has simmered since 1865. It bubbled into the open during the civil rights era of the 1960s. Anyone who traveled through the South and Southwest can tell you that every highway was studded with billboards screaming, “Impeach Earl Warren!”

    The targets for the radical right zealots are endless: Roe v. Wade, Brown v. Board of Education, Miranda, every piece of constitutional opinion and legislation that has defined and extended liberties beyond a small class of white, Protestant males. These people have enlisted religion, an entire political party, and now the full weight of the federal government to return to the glory days of 1859.

    Brooks and the Republicans have made a pact with the Devil, because they think they can survive and prosper in this unholy alliance. They will be surprised.

    Posted by  on  04/21  at  11:56 AM
  14. You got something against 1859?  Thunder, remember:  you knew who you were then; girls were girls and men were men.  Mister, we could use a man like James Buchanan again.

    Posted by Michael  on  04/21  at  12:04 PM
  15. Shorter David Brooks haiku (until the guy from Busy, Busy, Busy emulates his blog name):

    “Live in Wyoming?
    Sucks to be you, Miss Preggers!
    Red States ascendant!”

    Posted by norbizness  on  04/21  at  12:07 PM
  16. "… invented a right to sodomy”

    Mmmmmm, sodomy.

    Posted by  on  04/21  at  12:29 PM
  17. I can’t believe I’m defending David Brooks, but--what if Roe was wrong and those other decisions were right?

    I hate how both the left and the right act is if it’s always legitimate or illegitimate for judges to intervene. It’s legitimate if they’ve got a good Constitutional argument, illegitimate if not.

    I’m in this weird situation where I think Griswold, Lawrence, Goodridge, Brown, and Loving, and really hundreds of other Warren & Burger Ct decisions are right--but Roe was wrong.

    The bigger problem with Brooks’ column is that it’s a big old “they started it” argument. If the right had reacted with sanity, reason and compassion, there’s a realistic chance Roe would’ve been overturned and a practical certainty that we’d have fewer abortions & especially fewer late term abortions.

    Posted by  on  04/21  at  12:56 PM
  18. and yeah, even if it started with Roe and had NOTHING to do with Brown, which is bullshit--that still wouldn’t mean it would end if Roe were overturned. William Brennan & Harry Blackmun are not reaching out from beyond the grave and forcing the Republicans in Congress to be complete assholes about the courts & anything related to the human reproductive organs.

    Posted by  on  04/21  at  12:59 PM
  19. Mike,

    You should have taken the day off; this is the lamest of your satirical efforts yet. Search and replace is good for word processors but not for critical thinking. There is little parallel between Brown and Roe.

    >> I also want to know who are the “absolutist activists” in the Democratic party—you know, those radical pro-abortionists who are demanding that everyone have an abortion at least once.

    Nowhere does Brooks imply that; I will defer somewhat to your exaggeration, though, because you are on a roll here, but, now that you ask, how about Chuck Schumer? Of course he doesn’t demand that every good healthy American woman have an abortion but he is a man who will go to great lengths to inject pro-abortion bias into issues that have nothing at all to do with the matter. He will even contradict himself, make an about face, abandon a strongly held position if by doing so he could take a stab at pro-lifers. Example: the recent bankruptcy bill that will soon be signed into law. Schumer was clearly, vociferously against it, but then he figured he would support it if, and only if, he could slip into it a provision that would prevent any pro-lifer from discharging, through a bankruptcy filing, a civil judgment incurred from protesting/harassing abortion clinics. What a man of principle. And there are others like him.

    Remember the phrase, “Abortion on Demand”. Talk about thrashing civility.

    Brian,

    >>Whether or not you agree with the reasoning or results of Roe, you can’t attack it for taking power away from the legislatures and the “centrist majority.” That’s the courts’ job, because sometimes the legislature and the people are wrong. Otherwise we’d have the tyranny of the majority (i.e. if 55% of the people think it’s right, what can be wrong?).

    What if the people and legislature are wrong, but their wrongly held position and actions are certainly, definitely constitutional? All that judicial review should be concerned with is the constitutionality of a law.

    And sometimes the courts are wrong too. What is your point, that tyranny of the robed priesthood is preferable to tyranny of the legislative majority? Both would be bad, but we have means to check the power of the executive and legislature (elections, media, public pressure…), but none to check judicial fiat. Some seem to assume that the Supreme Court retreats into some airy, unsullied intellectual chamber and divines out some infallible truth (and these are people who will sneer at the College of Cardinals, ha). I don’t believe that Ruth Ginsberg has had an open mind on any matter since she was 21, I don’t trust her to give a fair hearing to any matter that does not square with her pre-conceived positions. You may feel the same way about
    Scalia. Supreme Court justices are political actors too. Supreme Court justices VOTE their preferences just like you and I do. I don’t consider my preferences to be infallible, though.

    It is NOT the court’s job to take power away from the legislatures, to thwart their wrongly conceived actions. The court’s job is two fold: 1) hear cases, evaluate the facts presented, see how they square with precedent, decide based on that 2) determine the constitutionality of legislation as it is challenged before them.

    Simple job, really.

    Would it be so bad for this country, if abortion was severely restricted in, say, Utah, but perfectly available in California or Colorado for that matter? It really shouldn’t be; you can get on a plane, bus, or drive a car to whatever state will offer the procedure (and don’t bring up a lame argument about the poor, this is a distraction), but you see pro-abortionists are not just concerned with the legality of abortion, they want abortion to be morally approved too. If there is single state in this nation that would declare unambiguously that abortion is illegal, then this strikes at the pro-abortionists conviction that there is nothing morally reprovable with abortion, this fact would gnaw away at their conscience without end. This they cannot stand.

    I agree with Brooks, Roe has been a catastrophe.

    Posted by  on  04/21  at  01:01 PM
  20. I love you.

    I suppose I can’t be an op-ed columnist because my own version of Brooks’s column is way too short.

    And Daniel, “you” can’t just get on a plane bus or car if you are poor.  But hey, those poor women sure would hate to be distractions from the “real” issue of “civility.”

    Posted by bitchphd  on  04/21  at  01:05 PM
  21. Katherine, I think DGF has answered your question in advance.  Brooks doesn’t actually say that Roe was wrongly decided on the merits; he says that it’s had a baleful influence insofar as it’s alienated conservatives from the courts and led to these procedural impasses.  My point is that that point is profoundly disingenuous.  Roe is only one of the many cases that has alienated conservatives over the past fifty years, and Brooks’s suggestion that the right will make nice if we just turn abortion over to the states is utterly insane (or profoundly disingenuous, see above).

    So you can go ahead and feel that Roe itself was wrong, but oddly enough, this doesn’t put you in agreement with Brooks.  His is a consequentialist rather than a principled argument against Roe, and on consequentialist grounds it’s a terrible argument.

    Posted by Michael  on  04/21  at  01:07 PM
  22. Daniel,

    There’s a lot I’d argue against in your comment, so let me just address two of the most important points.

    1) Why is arguing about “the poor” a distraction?  This issue is largely about the poor (if one uses that word broadly). The wealthy could always find ways to get a relatively safe abortion.

    2) Having abortion legal (which it is) and available (which it isn’t) in all fifty states is not about demanding anyone’s moral approval.  Indeed, the constitutional right to an abortion, recognized by Roe, is all about making abortion legal _regardless of_ the moral approval of a majority of any state’s residents. Speaking as someone who is fiercely pro-choice, I am absolutely happy to have you morally disapprove of abortion all that you want.  Were you a woman, you could actively express that moral disapproval by not having an abortion. And, as a member of your family and your community, you are free to implore those around you not to have abortions.  I would not be willing, however, to have you deprive women in any state of their right to their reproductive freedom, nor to use the powers of the state to interfere with the exercise of those rights.

    Posted by  on  04/21  at  01:17 PM
  23. Here is the text of a message I sent to David Brooks today. Really enjoyed the parody Michael.

    “David,

    I read your column on turning back Roe with interest. I read many of your columns and watch you on the News Hour regularly. And I often agree with you and a few other thoughtful conservatives and liberals. I see too little thinking and compromise on both sides.

    However, I have to ask, are you serious about the prescription you offer for reversing the bitterness in the current Senate debate over judges? In my estimation a reporter, or columnist for that matter, should at least give credence to the fact, and it is a fact, that those in favor of Roe advocate one approach to constitutional law and those opposed to it advocate another. Why should those who support the Roe decision just give up their view of constitutional law because those opposed to it are willing to threaten all out political war in the Senate? Your position is not “centrist” when viewed in those terms, it is a call for those who support Roe to simply surrender because the other side is willing to put a cleaver into the head of civility in the Senate and change the rules to suit their agenda. Are we really expected to believe that conservatives, or you for that matter, would have supported a similar move by Democrats when they controlled the Senate and the Republicans nixed Clinton’s appointments to the judiciary?

    More importantly though, what makes you think that conservative activists would stop with reversing Roe? Having grown up as an evangelical Christain in Alabama I can assure you it will not stop there. I am very familiar with the mindset and the stubborn insistence that they know the truth. Furthermore, the evangelical ministry is now an industry and, even if the Roe decision was overturned, the TV ministers would need a set of issues to oppose in order to spur donations.

    Larry Irons”

    Posted by  on  04/21  at  01:20 PM
  24. "No such claim for the intermarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms. In the opinion of the legislatures of more than half the States it is harmful to good citizenship."-- Virginia Supreme Court’s decision in Naim v. Naim, 1955.

    So I guess the betrothed interracial couple could have just jumped on a bus and gone to get married Maine, and presumably continued to live there since their marriage wouldn’t be recognized in Virginia. But no, that wasn’t good enough for them. They wanted universal moral approval of their race-mixing.

    Posted by norbizness  on  04/21  at  01:23 PM
  25. Daniel,

    Two responses:

    1) By “wrong,” I didn’t mean wrong in some warm and fuzzy ethical sense, but wrong in the constitutional sense, which of course is the only sense in which the courts should be looking at the issue. Since the courts decide that, it’s wrong for Brooks to suggest that the legislatures could have figured it out on their own without the court’s intervention.

    2) There is a check on judicial power; namely, their inability to step in and take action on their own accord. The courts can’t intervene as soon as a law is passed. They have to wait until (a) a case is brought to them, and (in the case of the Supreme Court) (b) that case raises legitimate consitutional questions. I don’t mean to sound condescending, but that’s the basic truth. Gripes about “judicial activism” have more to do with people on the right and left making such a concerted effort to bring their positions on an issue straight to the courts because the legislative process isn’t working for them (usually because they’re not getting exactly what they want).

    Posted by  on  04/21  at  01:46 PM
  26. Indeed, Brooks’logic is more applicable to Loving, as Loving was actually a countermajoritarian opinion (which Roe wasn’t and isn’t), and Brown of course generated far more hostile and violent resistance.

    Posted by Scott Lemieux  on  04/21  at  01:49 PM
  27. Ben,

    >> Why is arguing about “the poor” a distraction?  This issue is largely about the poor (if one uses that word broadly). The wealthy could always find ways to get a relatively safe abortion.

    Roe v. Wade as explained, decided by the Supreme Court, has absolutely nothing to do with the poor. You can’t just infer that the Court was sympathetic to the idea that “the wealthy and middle class will alwyas have their abortions, while the poor will suffer.” The decision says nothing about that. You may think it matters, but the Court in Roe v. Wade says or implies nothing of the idea.

    Posted by  on  04/21  at  01:54 PM
  28. Pardon me for bringing up the bleedin’ obvious, but: If Brooks feels so strongly about the ability of the solid center to work these hot-button issues out on a state-by-state basis, how does he feel about the Federal Marriage Amendment?

    Posted by  on  04/21  at  01:55 PM
  29. Daniel,

    Your comment about the poor came in the middle of a paragraph not about the reasoning of Roe, but rather about the practical consequences of its being overturned (or its never having happened).  Your paragraph begins: “Would it be so bad for this country, if abortion was severely restricted in, say, Utah, but perfectly available in California or Colorado for that matter?” It is in this context that you dismissed the poor as a distraction.  In fact, the issue of the poor is absolutely central to answering the question you yourself posed.

    Posted by  on  04/21  at  02:03 PM
  30. Right, okay. I agree with the crapulence of the judicial activism argument when it’s removed from discussion of the merits.

    He does oppose the FMA, though not in a way that takes him out of his Bush-apologist mode.

    Posted by  on  04/21  at  02:04 PM
  31. Yeah, poverty, what a distraction!

    If it had remained in the legislatures, we would have seen a series of donation-by-donation compromises ...

    Posted by  on  04/21  at  02:15 PM
  32. Daniel,

    It is NOT the court’s job to take power away from the legislatures, to thwart their wrongly conceived actions. The court’s job is two fold: 1) hear cases, evaluate the facts presented, see how they square with precedent, decide based on that 2) determine the constitutionality of legislation as it is challenged before them.

    Simple job, really.

    The extended discussion above and below this quote I pulled evidences against the proposition that the interpretation of constitutional law is a “simple job,” as you say. Obviously it would be simple if everyone shared your view, but they don’t--hence the present conversation. More to the point, I’m sure you’re aware that the Roe v. Wade decision was predicated on an (admittedly disputed, but supported by a 7-2 majority) implicit constitutional right to privacy. You may disagree with Blackmun’s assertion that this right is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” but that’s a mere difference of opinion on the decision itself, not the basis of a jurisdictional objection.

    Posted by  on  04/21  at  02:24 PM
  33. ”...they took sodomy out of the legislatures and put it in the courts.” There are about a half dozen people in my department who are wondering why I was laughing like a hyena a few minutes ago.

    Posted by  on  04/21  at  02:28 PM
  34. People, people, a little generosity toward Daniel, OK?  He’s right, my satire was lame.  In fact, as a number of you have pointed out, it isn’t even satire.  More important, I read Daniel’s penultimate paragraph in comment 19 as an implicit offer to set up an interstate transportation service for women seeking abortions.  A simple “thank you” should suffice.

    One thing about the separation of powers, though, Daniel.  You say “we have means to check the power of the executive and legislature (elections, media, public pressure…), but none to check judicial fiat.” Not so.  In response to the Court’s decision in Wards Cove v. Atonio (1989), for instance, Congress passed the Civil Rights Act of 1991.  Really, legislatures and executives talk back to judges all the time.

    Posted by Michael  on  04/21  at  02:36 PM
  35. Brian,

    >> There is a check on judicial power; namely, their inability to step in and take action on their own accord.

    This is hardly a check. Is their a single, charged, emotional case that does not soon get pushed into the court’s review, and in short order? The ACLU and others spend their days just fishing for plaintiffs. The check that you describe is only a procedural obstacle.

    Posted by  on  04/21  at  02:50 PM
  36. It really goes back to Marbury vs Madison. If Jefferson had any comprehension of the Constitution or the Bill of Rights he’d have put a stop to that decision right quick.

    Posted by ol cranky  on  04/21  at  02:58 PM
  37. I’m surprised no one’s mentioned the strongest legislative check against the SCOTUS--the passage of a federal amendment. That’s one thing the Court wouldn’t be able to do anything about. So really, instead of advancing forward behind the stalking-horse of jurisdictional violation, the anti-abortionists need to get behind the one process that would get them what they want once and for all. Of course, then they’d have to face the true marginality of their position on the issue . . .

    Posted by  on  04/21  at  03:09 PM
  38. DGF, absolutely on target...its been a long time since ERA ammendment was defeated only to then become the brand name for a detergent. If the anti-abortion crowd wants to change constitutional law outside the reasoning of the judiciary there is a prescribed way to do that with over 200 years of tradition behind it.

    Posted by  on  04/21  at  03:21 PM
  39. Brooks Roe-based argument is an old chestnut about the judiciary. The New Republic has been flogging this since the late ‘80s (yeah, back when it was still more recognizably liberal). I’m sure Peretz & friends are not the only ones with this idea, but it speaks volumes about where Brooks gets his ideas (old stavks of magazines or their metaphorical equivalent). The irony, of course, is that it would be the perfect argument for saying that the Dems should block the selection of a new wave of “activist judges” now.

    Posted by  on  04/21  at  03:28 PM
  40. Daniel’s articulation of why constitutional judging is a “simple job, really” exposes him as a True Believer in the Constitution in Exile movement, a.k.a. the Federalist Society (although I do have to acknowledge that Bork even admitted that Lochner was constitutionally indefensible). 

    Compare his statement to that of Justice Owen Roberts’ doctrine of judicial automatism on the anti-New Deal Supreme Court (he of the switch in time that saved nine):

    When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty, - to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment.

    This, of course, from one of the Justices who was busy striking down every piece of economic regulatory legislation they could lay their hands on.

    The difference, simply, is that the Constitution established a political system, based on consent of the governed plus the necessary “auxiliary precautions” Madison referred to in Federalist 51 to protect against the majority’s determination to abuse their power—separation of powers, a written Bill of Rights, and judicial review to ensure the rights and limitations in the Constitution were applied to the political majority in practice. 

    There is no “original intent” evidence that the Framers established any particular economic system in the Constitution—“property” was clearly a surrogate way of articulating the right to participate in politics (witness the property qualifications for voting imported from England and almost universal in the US until the 1820s) as the idea of a non-possessory “taking” of property didn’t even appear until 1922.

    Posted by  on  04/21  at  03:30 PM
  41. daniel, you’re also wrong about schumer.  he didn’t put that amendment into the bankruptcy bill because he was willing to sacrifice the bankruptcy bill to get anti-abortion protesters (though the amendment said any criminals, not just anti-abortion protesters): he put it in because he knew that anti-abortion republicans in the senate would not be able to vote for the bill with that amendment, thus killing it.

    and please, go back and read federalist papers #78.

    Posted by  on  04/21  at  03:37 PM
  42. Mike,

    You should have taken the day off; this is the lamest of your satirical efforts yet.

    Oooh, I know I love it when a complete stranger calls me “Mike,” especially when I’ve just introduced myself as “Michael.” It’s even better when I’ve just introduced myself as “Melanie.”

    The ACLU and others spend their days just fishing for plaintiffs.

    Now that the weather’s so nice, what say we all take the day off from satire and go fishin’ for plaintiffs?

    Since the “evil ACLU” has been invoked, only slightly inferior in infernal power to “the Clenis,” it seems clear that Danny’s primary goal is a thoughtful exchange of ideas on a complicated issue.

    Sometimes I wonder, what did these folks do before weblogs were invented?  Burst into banquet rooms at restaurants and recite talking points at people?

    Posted by  on  04/21  at  03:41 PM
  43. Daniel,

    I acknowledged that there are plenty of issues that “soon get pushed into the court’s review, and in short order,” as you say. My words:

    Gripes about “judicial activism” have more to do with people on the right and left making such a concerted effort to bring their positions on an issue straight to the courts because the legislative process isn’t working for them.

    My point was that it’s not the courts that are pushing the case, but plaintiffs on both ends of the political spectrum, and I don’t think you can blame the courts when people resort to these tactics. Complaints about judicial fiat usually come when people turn to the courts in this manner and don’t get what they want.

    The courts have to wait for a case to be brought, and then decide based on the merits of the case, which is why they don’t/can’t hear every (or even necessarily the first) case on a hot-button issue. They can’t just dive into the fray willy-nilly. It’s a pretty big “procedural obstacle.”

    Posted by  on  04/21  at  03:55 PM
  44. DUDE! what PLANET do YOU live on?! unless by “we” you meant Diebold, Rupert Murdoch, James Dobson, and yourself!

    “Both would be bad, but we have means to check the power of the executive and legislature (elections, media, public pressure…)”

    (excuse me while i wipe of the keyboard...)

    not to mention, as a resident of the state with possibly THE most corrupt and UN-checked cronyism & lobbying stinking up our legislators in Harrisburg...the idea that i’d want them to work ANY thing complicated and truly important out is kind of scary. you should see their new improved plan to fund PA schools with imaginary profits from gambling casinos which they are allowing themselves to own interests in! it might make more sense if just cut out the middle-men and sent the students directly into the casinos and had them try to “win” an education from a poker machine.

    anyway, even though i don’t think you meant to be funny with that line--thanks for the laugh, Dan!

    -L.

    Posted by  on  04/21  at  04:08 PM
  45. Oh Michael, thank-you. Superb choice of (non-violent) water bomb to splash on Brooks silly parade; silly but capable of producing a state of sputtering rage I don’t need with my morning coffee. 

    Excellent comments thread, too.

    Amazing how the original pattern of substituting major SCOTUS decisions into Brooks text works so well...especially liked Ben Alpers “Marbury vs Madison” version...boy did that one ever have intense, long-ranging, upsetting impact on American life.

    But Michael, you picked the one decision that drives the right crazy, to this day. Truth to tell, “Brown” doesn’t work in strict constructionist terms or by excavating for original intent, but for the most part, except for Sowell, Williams, et al, whom I think feel they can do so by virtue of their race, the right no longer feels comfortable attacking the striking down of legal segregation.

    No one should assume, though, that Marbury vs Madison is safe. No indeed. The folks behind “StopActivistJudges.com” have set their sight on John Marshall and the whole notion of judicial review. Their claim is that if you know how to read the Constitution, stictly, with due constructionist diligence, you can’t find judicial review, not in the document, not in the founders’ intentions. Those of us who were taught differently were taught wrongly. Who knew?

    I’m not yet clear on what the Supreme Court should have been doing instead, all these many years?

    Daniel, I don’t quite understand what you mean with your citation of “abortion on demand” which you juxtapose with civility; that phrase is very much a creation of the anti-Roe forces, and by and large the way it’s used by them, it is indeed uncivil, and mainly untrue.

    I’ve read Roe and the subsequent Bolton decision, I wish more people would. I find it to be an exquisitely argued decision; I’ve never understood the reluctance of so many people, even among those who support choice, to engage in a robust defense of the decision that made choice possible, although this comments thread is a heartening correction to what is perhaps a wrong impression.

    Posted by Leah A  on  04/21  at  04:40 PM
  46. Funny, I think in a way he might be right if you extend it to Brown.  Only I don’t really.  I don’t think there was much progress before Brown v. Board of Ed., but I look at Boston and see a city and a school system that’s not very integrated today, and I have to say that courts aren’t enough.  There’s real work of reconciliation that has to be done afterwards.

    Posted by  on  04/21  at  04:43 PM
  47. Leah—two things.

    First, while I’m not sure Roe‘s analysis quite deserves all the abuse it’s gotten over the years, I think Justice Ginsburg made a very good point (in an article she wrote some years before she went onto the Supreme Court) that equal protection would have given a politically and strategically stronger basis for Roe than privacy, simply because it would have given far more women reason to find common cause in preserving the precedent, even for some who didn’t like that particular application of EP.

    Second, I strongly disagree with the notion that Brown is insupportable based on the original intent of the Civil War amendments’ drafters.  As Nathan Newman’s excellent article (don’t have the link but it’s on the Brennan Center’s website) points out, the truly integrationist vision of the Civil War amendments’ drafters has been ignored and abused from some of the Supreme Court’s initial interpretations in the early 1870s (thanks presumably to Pierce, Buchanan and Johnson appointees) right down to the Rehnquist Court’s trashing of the implementation clause of the 14th Amendment—a clause that was written with the Court’s abomination of Dred Scott fresh in their minds.

    Thus do current-day Confederates betray the sacrifices of Union Civil War dead, and that of the founder of their own party.

    Posted by  on  04/21  at  05:03 PM
  48. Dear Michael and all fans,

    what wonderful people you all are. I’m sincerely impressed with the civility and decency of this blog. I’ve been enjoying this evening very much in trying to grasp the exchanges. From far-away Europe, I think I could be allowed to proffer some remarks and questions. Of course I’m quite ignorant on constitutional matters and case-law in the US.
    Firstly, in general don’t you think that the simple fact a court would need to decide on important matters such as abortion-issues rather than the regular tools of a representative democracy reflects on the strength or significance of the representation of congress and/or senate? It is a tendency we can notice in little Belgium also (granted for a country of a mere 10 million people, we have six governments and almost as many parliaments, last time I checked…). The recourse to judicial cutting of complicated knots does constitute a questioning of the performativity of both the legislative and executionary powers, therefore of basic democratic quality. Obviously, democracy cannot be reduced to sheer quantitative matters, so, is a debate outside of the blogosphere (still) viable? (oops, two questions in one)
    Secondly, if that is the case, am I right in understanding the US as a union is in a more dire strait than for instance the EU at present; the EU were almost everyone ironically and cynically pretends not to want to be part of, but nevertheless remains member out of a keen sense for basic survival and out of – in my opinion- a rather healthy resistance against a United States of Europe (now there’s a recipe for long term global war…)? 
    That may sound as if I’m eager for the US to fall apart, which I’m not, really. My vested interest is only that most of my family is US-citizens or lives there (legally) and also that whatever transpires in the US has the potential of being of worldwide significance. In that sense I find it somewhat disconcerting that no reference to is made in this exchange to whatever is going on elsewhere, in terms of comparison, best practices, and all that…(including all that is paid by acknowledged or not, US money).

    I fear this (pardon the graphic description) navel-gazing reflex is potentially self-destructive, or at the very least rather provincial. You are, in spite of whatever your ambitions may be, burdened with a responsibility, which is both unique and beyond more (however urgent) local concerns. The US position on abortion, on women’s rights, on machismo, on racism and so many more pressing and rather complicated matters are far more important than whatever B16 is going to do or not do.  I do wish you all the best.

    Posted by  on  04/21  at  05:41 PM
  49. Great post, Michael!

    Posted by  on  04/21  at  06:00 PM
  50. Ya know, the kids are watching the supposedly adult boomer generation fighting over these things, and just shaking their heads at us.

    Posted by donna woodka  on  04/21  at  06:01 PM
  51. Funny.  But wrong.

    Segregation could not have been undone by the political process.  Segregation was supported by disenfranchisement.  The higher the percentage of African Americans in a state’s population, the more deeply entrenched the segregation.  Alabama and South Carolina were well over 40% black in 1950 (the census before Brown).  Alabama was one-third black in 1950, North Carolina over 25% black, Florida and Arkansas over 20% black. If African-Americans could have voted freely, alliances could have been made with the more liberal elements in these states and segregation would have been overturned.  More accurately, it could never have been imposed.

    But African-Americans could not vote. Disenfranchisement was enforced by law and by state-sponsored terror.  Plessy-- which was obviously wrongly decided to anyone not a racist-- had to be overruled before Jim Crow could be dismantled.

    By contrast, at the time of Roe in 1973 a movement to reform the abortion laws was underway in the states.  Beginning in the late 1960’s, thirteen states modified their abortion laws to permit abortion in certain circumstances.  Between 1970 and Roe, four states repealed their abortion laws entirely.  There was clear evidence that abortion laws could be reformed via the political process.

    No one can say for sure what would have happened without Roe.  But it is there is an defensible argument to be made that Roe cut off a trend that was well underway.  There is no basis to make a similar argument with respect to Brown.

    An argument that Brooks does not make, but one that I believe, is that Roe killed feminism’s opportunity to become a majority movement.  Far and away the most radicalizing event for a young woman before Roe was the need to deal with an unwanted pregnancy.  After Roe, pregnancy became an issue of “privacy” between a woman and her doctor, a personal “choice,” with no political implications at all.  The entire premise of feminism as a movement-- “the personal is political”—vanished for the generation after Roe. 

    This was a terrible loss for progressives in America.  Instead of a mass movement organizing around the right to an abortion, we have seen a mass movement to prohibit that right, while those who should be out in front politically—women and their partners who have made use of their right to an abortion—are embarrassed to discuss it in public.

    Posted by  on  04/21  at  06:21 PM
  52. Damn, you did the entire thing! I just did the last paragraph!

    It’s almost like we’re getting good at the Vast Right Wing Conspiracy code, I suppose.

    Posted by Maureen  on  04/21  at  07:10 PM
  53. A great argument, JR, and one that I have some sympathy with, even though I’m leery of scenarios that depend to some measure on alternative histories.  For while you’re right that “in 1973 a movement to reform the abortion laws was underway in the states,” who knows but that the movement would have been rolled back right around the same time that the Equal Rights Amendment was defeated?  The period 1973-1980, after all, witnesses the birth of the great cultural backlash movements in the US—anti-affirmative action, anti-abortion, anti-gay—and I wouldn’t want to put too many of my chips on all the progressive developments that might have happened if not for Roe.

    But let’s get back to Brooks.  His argument is that Roe alienated conservatives from their government, and led to an increase in civil incivility.  My response is that whatever one can say about Roe on this count, one can say a fortiori for Brown and Loving:  both were decisions without precedent (the first overturning a clear precedent, the second presenting a question which, as the Court noted up front, had never been adjudicated before) involving an “activist” judiciary that created new rights under the Fourteenth Amendment.  (I second Steady Eddie’s second of Ruth Ginsburg’s argument about defending reproductive rights under the heading of the equal protection clause, as well.) And the only reason Brooks makes this argument at all, of course, is to provide “high-end” ideological cover for the GOP’s broadside attacks on the very idea of an independent judiciary.  In response, I do think it behooves liberals and progressives to remind people—and ourselves—why we have sometimes turned to the courts rather than to the court of public opinion.

    There is, by the way, something to be said for the argument that Roe has led liberals to place too much emphasis on judicial defenses of abortion rights at the expense of winning broader popular support for those rights.  Lani Guinier says something similar about the post-1960s civil rights movement in Lift Every Voice ("instead of a moral crusade led by the people, the civil rights movement became an almost purely legal crusade").  But that doesn’t let Brooks off the hook, either.

    Posted by Michael  on  04/21  at  07:13 PM
  54. Michael-
    Oh, Brooks is a jerk - every column is guaranteed to be written in bad faith. I wasn’t trying to defend his ridiculous argument - thanks for responding and I’ll be back tomorrow-

    Posted by  on  04/21  at  07:33 PM
  55. The radical right needs Roe to fire up its base and demonize liberals. Karl Rove’s worst nightmare is a Supreme Court that throws the issue of legal abortion back to the states. Poll after poll shows that a majority of Americans, although uneasy with abortion, still favor its legalization. But Americans sans Roe would quickly learn how zealously undemocratic the religious right is willing to be in order to force its theocratic version of the constitution on the rest of us.

    Posted by Heraldblog  on  04/21  at  07:45 PM
  56. <i>I fear this (pardon the graphic description) navel-gazing reflex is potentially self-destructive</i>

    My vote for cutest blog comment of the year.

    Posted by Alex  on  04/21  at  07:51 PM
  57. The thread posts above present some fine discourse and many salient points.  When i read the original satire my first thought was, and still is:
    Cherokee Nation v. Georgia and Worcester v. Georgia.

    Posted by  on  04/21  at  08:40 PM
  58. Leah,

    >>I don’t quite understand what you mean with your citation of “abortion on demand” which you juxtapose with civility; that phrase is very much a creation of the anti-Roe forces, and by and large the way it’s used by them, it is indeed uncivil, and mainly untrue.

    You are so wrong about this, and I can see that you are probably under 30 - not that there is anything wrong with that. From about 1974 to 1980
    “Abortion on Demand” was the singular rallying cry of pro-choice forces. Having won the unfettered (and it is unfettered, notwithstanding whatever potential proscriptions roe envisions) right to abortion, the pro-choice forces then demanded, really DEMANDED, that congress and the states provide medicaid funding for abortion. This effort went through so many court cases and legislative initiatives that I can’t even remember. Well it ran into a wall when Reagan was elected and we haven’t heard much about it since. But the calls, demands for universal, government funded access for abortion were incessant and shrill. Why? Well beyond the obvious reason that the left always wants the government to foot the bill for healthcare, was the effort to make abortion stigma free; if the government was funding it wouldn’t that signify that abortion has little or no negative moral effect? As regards abortion, the era was quite uncivil, more so than today.

    Posted by  on  04/21  at  08:47 PM
  59. Do Dred Scott; do Dred Scott.  Oh no, wait.  Taney left it to the legislature and then . . .

    never mind.

    Posted by Eligere  on  04/21  at  09:58 PM
  60. Exurb boy is clueless. Worst damge ever? What a joke, does exurb bitch have an idea of deficits, Iraqs war and tax cuts? We’ve survived Justice Warren’s decison though good and bad times. It would be nice to redirect him to the rudepundit’s website so the whore can get an insight on the current political discourse.

    Posted by  on  04/21  at  10:03 PM
  61. Thank you very much, Mr. Berube.

    The first thing that popped to my mind when I scanned Brooks’ column was substitute Brown v. B of E for Rowe v. Wade.

    Excellent parody.

    Posted by  on  04/21  at  10:20 PM
  62. Excellent sendup of yet another idiotic column by Brooks.

    Posted by  on  04/21  at  10:40 PM
  63. I think this is my favorite blog post by anyone ever.

    Posted by Eli  on  04/21  at  10:45 PM
  64. "Miscegenation now!  Miscegenation forever!”

    Posted by George Wallace  on  04/21  at  10:49 PM
  65. Whatchu talkin’ ‘bout, Wallace?

    Posted by  on  04/21  at  10:51 PM
  66. Let me try one:

    Justice Olivery Wendell Holmes did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Buck v. Bell decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

    When Holmes wrote the Bell decision, deciding that “three generations of imbiciles are enough,” it took forcible sterilization of the mentally handicapped out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises on forcible sterilization of the mentally handicapped reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

    Instead, Holmes and his colleagues invented a right to forcible sterilization of the mentally handicapped, and imposed a solution more extreme than the policies of just about any other comparable nation.

    Posted by  on  04/21  at  11:07 PM
  67. Michael,
    Well this is kind of weird. But then again, maybe not.
    First off, excellent post.
    Second, I swear on a stack of First Folios that I had no idea you had published this excellent analysis before I put up my own humble effort.  I was just wandering by Eschaton a couple of minutes ago and thought, “Hey, this looks interesting.”
    And it was grin
    Great job...and here’s what I’m referring to.

    http://driftglass.blogspot.com/2005/04/bobo-pleads-for-compromise-again.html

    Posted by driftglass  on  04/21  at  11:17 PM
  68. DGF and HeraldBlog are onto something. Roe v. Wade has been, and continues to be, a superb tool for whipping up support for Republican candidates among certain groups, to the extent that members of those groups often overlook gross failings of Republican economic, social and environmental policies.

    If overturning Roe v. Wade is so important to the base, why is it that the same Republican President and Congress that can whip up an anti-Gay Marriage amendment on a seeming moment’s notice can not, in the 5 years so far of the Bush Presidency, even introduce an anti-abortion amendment? I think it is because such an amendment is a lose-lose proposition for the Republicans. First, the failure of such an amendment to be enacted would clarify their position as being counter to that of a majority of Americans. Second, if it was to somehow pass, a significant number of people who vote Republican due to the abortion issue might start looking at other issues that matter to them and might find the Democrats’ positions on those issues a better fit. Even having an amendment working its way through the ratification process could reduce the effectiveness of “Activist Judges” appeals.

    If instead the Republicans succeed in getting Roe overturned they can continue to whip up abortion foes by pointing out that the overturning of Roe could itself be overturned by “Activivist Judges.”

    BTW, the conservatives in my family are not going to be placated by overturning Roe. They would simply shift their “anti-liberal Judges” fpcus and rhetoric to attacking progressives and judges for school prayer, gay marriages, flag burning or even school integration (yes, some of them are still so bitter over forced integration that you would think it had only happened yesterday).

    Posted by  on  04/21  at  11:31 PM
  69. This is funny. But it’s a work for the ages. You’re the new Orwell. This perfectly deconstructs Republican rhetoric.

    Posted by  on  04/21  at  11:42 PM
  70. Great stuff, Michael. Contrary to what the wimpy Mr. Brooks says, I always thought that if the Republicans had distanced themselves from the anti-abortion terrorists (saw it all, way too close here in Pensacola, Fl.) and the Jerry Falwells, the Progressives might have been willing to compromise years ago. Still haven’t heard one Republican in power distance himself from the wackos and todays Joe McCarthys. Not one. So, fuck them.

    Always liked Ed Abbeys line about making abortion illegal: “Forced, full-term pregnancy by the State”.

    and, does anyone else feel that men having such a strong opinion on abortion is idiotic?

    Posted by  on  04/21  at  11:59 PM
  71. Ther should be no need for the NYTimes to pay you once the administration gets wind of your skills!

    Posted by jfogerty  on  04/22  at  12:22 AM
  72. Who was it who said:  “if men could get pregnant, abortion would be a sacrament’?

    Posted by  on  04/22  at  12:46 AM
  73. Abraham Lincoln did more inadvertent damage to our democracy than any other 20th-century American. When he issued the Emancipation Proclamation, he set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

    Gee, this is fun.

    Posted by julia  on  04/22  at  12:48 AM
  74. Not only that - but he also basically ripped off a piece (supposedly by a liberal) from the Atlantic Monthly a few months ago saying the exact same thing. It’s had me pissed for MONTHS. There I am, eating my generic O’s cereal this morning, and Brooks makes me spit my cereal all over again.

    http://www.theatlantic.com/doc/prem/200501/wittes

    How am I supposed to sleep at night?

    Posted by  on  04/22  at  01:07 AM
  75. "The period 1973-1980, after all, witnesses the birth of the great cultural backlash movements in the US—anti-affirmative action”

    Good, but remember that initial date 1973 and think for a sec how little room that leaves for a *lash*.

    Ex-denizens of the Old Dominion like me and Michael know that, under the policy of Massive Resistance, Virginia’s segregationists closed down all the public schools in the old Dominion in 1969.  That’s 1969.  And women were allowed to attend UVA, which is a state-run institution in...what? 1970?

    So if the “backlash” begins in 1973, and the racial and sexual integration of public schools and universities in Virginia only began in 1969-70...exactly how long were we liberals playing Lash Larue? 3 years? 4?

    Posted by  on  04/22  at  01:28 AM
  76. And the Dred Scott decision narrowly avoided the Civil War by taking the slavery discussion out of the courts and putting it back into the states, where it belonged in the first place?

    Posted by  on  04/22  at  02:43 AM
  77. Brown vs Board of Education was not in the same class as Roe.  The constitution was amended 3 times after the Civil War to give Negroes rights.  Brown vs Board was a delayed implementation of those amendments.  The democratic process installed those amendments. The SCOTUS was slow in implementing rights for Negroes, not activist.

    Roe, on the other hand, was an exercise in interpretation, not the following of the texts of amendments.

    You should have read the Constitution before you wrote your parody.

    In Roe, the SCOTUS found a right to private personal behavior in the Constitution.  This is consistent with much of the Constitution but still weak, as the Court was deciding on controversial facts rather than Constitutional issues.  After all, the viability of a fetus changes with technology, and child abuse is just as personal as abortion, so the issue of privacy is clearly not a tower of power, trumping all other issues.

    Posted by  on  04/22  at  04:08 AM
  78. What a beautiful day in the neighborhood!  I hadn’t read DB’s predictably idiotic column-- my doctor ordered its removal from my media diet, as a blood-pressure reduction measure. (The doc also thinks that avoiding Brooks may delay that first colonoscopy, so who am I to argue?)

    Michael, you’ve built quite the superior mousetrap.  Reading all of these great comments was a highlight of my day, and once I’d done so, a subsequent visit to Wavey Davey’s original column provoked nothing but hilarity: no blood-pressure spike, and no apparent constipation!  Faith healing, indeed…

    Posted by  on  04/22  at  05:30 AM
  79. Daniel: ...Would it be so bad for this country, if abortion was severely restricted in, say, Utah, but perfectly available in California or Colorado for that matter? It really shouldn’t be; you can get on a plane, bus, or drive a car to whatever state will offer the procedure (and don’t bring up a lame argument about the poor, this is a distraction), but you see pro-abortionists are not just concerned with the legality of abortion...

    “Lame argument about the poor”!  Daniel evidently believes that when liberals talk about “the poor” we’re making some kind of abstract logical argument, asserting a counterfactual hypothetical case to construct a reductio ad absurdum.  This might be convincing if we were doing pure mathematics, but it’s not a legitimate political argument here in the real world, because in real life “the poor” do not actually exist.

    Hey, I can do reductio ad absurdum too!  If considering the nonexistent “poor” is a “lame argument,” and since in ‘73 any pregnant woman could simply dial up a travel agency and purchase a round-trip ticket to Copenhagen or somewhere like that where abortions are available, the same as she can today, it follows that for all these years, Roe vs. Wade has been effectively meaningless.

    Now if that’s the case, that Roe vs. Wade amounts to nothing at all, when are all these disgusting pincheyed fundi trash going to stop bitching and bitching and bitching about it?

    Posted by  on  04/22  at  07:28 AM
  80. Danman “Well beyond the obvious reason that the left always wants the government to foot the bill for healthcare, was the effort to make abortion stigma free”

    Um...stigmas are inflicted.  Actually, the left wants to prevent you from taking the hammers and nails to women who avail themselves of this legal option.  Unlike the right, the left doesn’t have leaders talking up just how wonderful the procedure is to counter the hellfire sermons.  The left wants the “government"--a little something I like to call “of the people, by the people, for the people” (or “people” for short)--to foot the bill for healthcare so that everybody has some.  As a bonus, lefties have the gall to take damnation out of the “consents, inform, anaesthesia, procedure, recovery” cycle.  Yeah--stigma is SO part of the Constitution.

    Dannyboy “if the government was funding it wouldn’t that signify that abortion has little or no negative moral effect? As regards abortion, the era was quite uncivil, more so than today. ”

    Yeah, inquisition and blowing up the Senate are so civil.  Yep--we just put a man away for life for bombing patients, nurses, and darn Olympic libruls to get at them “durty girls” and you call it civil.  Must have been Roe v. Wade that caused at that incivility back then too.  Ignore that whole Vietnam body count, etc.  No more stigmas to pin on poor women just riled up those poor, poor, peace-loving volk back then.  Give me a break.

    Posted by DocMara  on  04/22  at  08:52 AM
  81. BTW, token belgian--be careful about discussing “best practices.” One of the enthymematic premises of the American right is that “Best Practices” must fulfill three conditions

    1. Must be conceived in the U.S.
    2. It must fill the pews.
    3. It must re-line the pockets of rich donors

    Of course, if 2 & 3 are fulfilled, then we can make up a story about how we “really” invented the practice in the U.S.

    Witness Kennedy being publicly flogged for even acknowledging that we are part of the world.  Bad Kennedy!  Navel gaze!  Navel gaze!

    Posted by DocMara  on  04/22  at  08:57 AM
  82. Oohhh, Oohhh!  Do one on suffrage...DO ONE ON SUFFRAGE!!!!.  hehehe.

    Posted by  on  04/22  at  08:58 AM
  83. Brooby is back!!!

    Posted by  on  04/22  at  09:15 AM
  84. You know, just think of the damage Moses (as God’s amanuensis) did with those Ten Commandments.  If he hadn’t butted in, the political process could have worked out a state-by-state solution to that whole murder thing.  And you know, some groups could worship Baal, others golden calves; some could covet only their neighbor’s ass, but not their ox, and others vice-versa…

    Posted by  on  04/22  at  09:41 AM
  85. Nicely done, Glenn.

    You know, just think of the damage that Jesus did with that whole “Who do you say that I am?” speech.  If the early Christians hadn’t butted in, the political process could have worked out a sect-by-sect solution to that whole Messiah thing…

    Robed activists complaining about robed activists is a hoot!

    Posted by DocMara  on  04/22  at  09:57 AM
  86. Maybe your modest proposal isn’t so modest after all, Michael.

    Actually there’s been a lot written about Brown v. Board of Ed and how many people think that it was a failure.  It took twenty years to make any real change in the schools in the South.  The courts didn’t have the muscle to back up their ruling.  Some think that it would have been better to get a grassroots movement going in those states and more incrementally bring about change through the legislatures.  The Hollow Hope is the best book on the topic, but there were a lot of articles debating this last year during Brown’s anniversary.

    Bringing about change through the courts v. Congress/legislature is a serious topic in political science and it doesn’t fall along liberal/conservative lines.  Lots of liberals think that popularly elected branches of gov’t bring about more secure change.

    Posted by Laura  on  04/22  at  10:53 AM
  87. This IS fun!!

    George W. Bush did more inadvertent damage to our democracy than any 20th-century American. When he and fellow neoconservatives Administration created their doctrine of preemptive war, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to world peace as we know it.

    When Bush decided to invade Iraq, it took the issue of invading other countries out of the Security Council and put it into the hands of the President of the United States.  If it had remained in the Security Council, we would have seen a series of stepped up weapons inspections and sanctions, perhaps later leading to a unified Security Council authorizing war, reflecting the views of the centrist majority that’s always existed on this issue. These compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

    Instead, Bush and his colleagues imagined links to Al Qaeda and weapons stockpiles, and invented a right to preemption, overturning more than a half-century of established precedent, and imposed a solution more extreme than the policies of just about any other comparable nation.

    Colin Powell became alienated from his own government, feeling that military caution had been usurped by chickenhawk elitists.  Neoconservatives lost touch with working-class Americans, because they never had to have a conversation about the proper use of the military with those voters; they could just rely on the President to impose their views.  The parties polarized as they each became dominated by absolutist activists.

    The fact is, the entire country is trapped.  George W. Bush and his supporters have suppressed that democratic “war” debate the nation needs to have.

    The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless we can be honest about why we went to war, politics will never get better.

    Posted by John  on  04/22  at  11:12 AM
  88. Mr. Berube:

    I agree that the Warren Court initiated the most well known cases of judicial activism or even judicial legislation. And in a purity of law sense that case and similar ones are horrible judicial decisions which are not based on legal principles of precedent. (I think Warren was actually a California governor but not an attorney, can’t remember)However,I do not agree that Brown should be overturned. The Courts have always been in the forefront of progressive change they have also been behind some of the most conservative decisions as well. But controversial legal decisions are almost always followed by legilative action, which brings the change needed or desired by the public. This has always been a necessary component of goverment and laws because many times change does not come due to political timidity, down right cowardice, or simple self preservation/interest. That is why although many lawyer jokes are funny and many lawyers are exactly like the stereotypes. But remember many of the founding fathers, Heros of the Revolution, Nad Political Giants were also lawyers.

    Sincerely.

    Posted by  on  04/22  at  11:50 AM
  89. Daniel wrote: “pro-choice forces then demanded, really DEMANDED, that congress and the states provide medicaid funding for abortion” and “the calls, demands for universal, government funded access for abortion were incessant and shrill. Why? Well beyond the obvious reason that the left always wants the government to foot the bill for healthcare . . .”

    His reminding readers of citizens’ efforts in 1974 and after to procure state and/or federal funding of abortions for women reminds me that, in NC, the state happily paid for forced sterilizations of women--sometimes, but not always, against their will or knowledge--through the surprisingly successful efforts of the state’s Eugenics Board well into the mid-1970s. So my response is one that relates to historical context. Could it be that, once women gained a modicum of reproductive control for themselves, regardless of race, class, or residence, conservatives in the ilk of Reagan suddenly had a new take on “life,” “choice”, or “morals” as well as new thinking on funding for and access to reproductive health technologies?

    I know nothing substantive about law or legal history, but I do ken that law has a theoretical realm in which the life circumstances of individuals are irrelevant. In the reality-based world, however, I submit that the “poor” are not “distractions”; they are neighbors, sisters, and strangers. And in the reality-based world of reproductive technologies, many women (but especially poor women) are, to quote historian Johanna Schoen, “rarely able to gain access to these technologies on their own terms.”

    My vision for a civil society differs dramatically from Daniel’s, I suppose. But then, apparently, so do our reality-based experiences.

    Posted by  on  04/22  at  11:52 AM
  90. I just finished reading Dave Niewert’s post “Black Robes” which included bits of Dana Milbank’s coverage of an April 8 meeting on “Confronting the Judicial War on Faith”.  It is very interesting reading, particularly in conjunction with Michael’s wonderful parody of the Brooks piece and the many excellent comments this elicited from his readers.

    I admit that David Brooks frightens me.  He is glib and just pleasant enough to appear genuine.  But his pieces in the NYT are not pleasant in the least.  They are, it seems to me, spiteful bits of nastiness dressed up as condolences.  “Poor Dems—here’s what you should do” sort of thing and then it becomes clear that what he thinks you should do is become a Republican extremist.

    Posted by  on  04/22  at  02:28 PM
  91. mark k asked “does anyone else feel that men having such a strong opinion on abortion is idiotic?”

    I do. They will never, ever, know what it feels like to be told “you’re pregnant” when you were desparate for it not to be true.

    As to the courts and “judicial activism” those who point to Marbury v. Madison are on the right track. The Supreme Court wouldn’t be worth putting people on if it had not boot-strapped itself into the arbiter of constitutionality.

    As a former law student, I must say that constitutional law is completely different from every other area of the law.  Stare decisis, or following precedent, really means very little in constitutional law.  I kept trying to figure out how the Court was following precedent in one key case after the other, and I couldn’t, because they weren’t. It wasn’t until I gave up on the concept of precedent in constitutional law that I began to get better grades in it. The Supreme Court, in interpreting the Consitution, has always followed it conscience and trimmed the law to it rather than the other way around.

    Posted by  on  04/22  at  06:27 PM
  92. Steady Eddie; I agree with your critique of my original comment. I failed to say clearly what I meant.

    I have read and find Nathan Newman’s explanation of the historical basis for a genuinely historical intentionist reading of the three post Civil War civil rights amendments completely persausive.

    What I meant to say was that the right has difficulty getting to a justification of Brown based on their version of original intent and strict constructionism, which is weirdly ahistorical, although understandable when one realizes it is the necessary basis for the Rehnquist right’s ability to roll back and limit 20 and 21st century legislative protection of civil rights.

    What I was trying to get at is that at a certain point in the seventies, many on the right gave up decrying Brown; it’s support nation-wide was too wide and too deep. Thus, when Robert Bork, as the probable Reagon first choice appointment to the Supreme court, was burnishing his centrist facade, I remember reading an interview with him in which he explains why Brown is acceptable to an advocate of strict constitutionalism and/or original intent, even though there is evidence that segregation in the schools of Washington D.C. might indicate that the framers of the “equality” amendments didn’t view segregation as unequal treatment; his reasoning then - it was their intention that an artificial category like “race” should not be used to to justify different treatment of citizens, and that we now understand, as they might not have, that legally mandated school segregation by race is unjust by definition. No mention made of the the post-civil war civil rights legislation enacted by congress and invalidated by an activist Supreme Court, who were lacking in our advanced 29th century awareness.

    It struck me at the time as being exactly the kind of “relativist” ahistorical “living constitution”
    reading that the right is always screaming at liberals about.

    Not that wingnuttery has cleansed itself of its dislike of “Brown;” as Laura suggests, their tack has changed; now it’s Brown’s ineffectivness they like to emphasize; in fact on the occasion of last years 40th anniversary of the decision, some Claremont sinecurist published just such an analysis. It’s also true that there is a left/liberal critique of the Marshall/NAACP court-aimed approach, although Lani Guinier’s is of the later over-dependence on the court; nothing tells me more about the insincerity of the right-wing’s theoretical embrace of legislative democracy over the “undemocratic” institution of the Judiciary than their vicious lies about who Guinier is and what her ideas are; Bill Clinton’s most shameful day on earth will always be the one on which he betrayed not only their friendship, but the integrity of both her work and his own intelligence.

    Posted by Leah A  on  04/23  at  06:30 AM
  93. Oooh, ooh Michael, me too, I can churn it out just like David Brooks, just read this one:

    Justice Earl Warren did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Griswold vs. Connecticut decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

    When Warren wrote the Griswold decision, it took the right-to-contraceptive-privacy issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

    Instead, Warren and his colleagues invented a right to contraceptive privacy that existed nowhere in the Constitution, and imposed a solution more extreme than the policies of just about any other comparable nation.

    Southern voters became understandably alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

    The fact is, the entire country is trapped.  Earl Warren and his colleagues suppressed that democratic right-to-contraceptive-privacy debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Griswold vs. Connecticut is overturned, politics will never get better.

    Posted by  on  04/23  at  11:00 PM

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