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October 31, 2005

Schumer: Alito Would Support Jim Crow!

Uhhh, okay, Chuckie, sure.

The judiciary is, by its traditional nature and historic role, a reactive institution. As it should be, and as it was, until 50 or so years ago.

Judges are not terribly good at "advancing" social policy. Although an argument can be made that more Americans support abortion rights due to the Court's ruling in Roe and subsequent opinions, it is hardly the case that Court's political legislating in this area has ended the debate. Indeed, it's exacerbated it; even people who are pro-choice on policy grounds (like me) find Roe v. Wade to be a horrendous judicial decision.

The same on civil unions/gay marriage. Surely it can't have escaped the notice of the Philospher Kings in our judiciary that it was the Massachusetts Supreme Judicial Court's nakedly political diktat on gay marriage that most raised the hackles of conservatives -- and moderates. States like New Jersey that enacted civil union laws through the constitutional method of doing so -- you know, boring legislators passing boring laws, without the sexy heat and controversy of judges saying "The Constitution demands this, and you must obey" -- are barely mentioned in the various briefs on the culture wars.

The One Big Success of the Court pushing society in a particular direction was Brown v. Board of Ed. But how much of the country's rejection of racism and Jim Crowism and etc-ism was actually due to that decision itself, and how much was due to the political persuasion of the country that such things were malevolent and anti-American? I would say mostly the latter -- had the country not decided that racism as A Big Bad Thing, we would be having disputes over Brown as intense as the disputes over Roe.

The Court has little persuasive power to actually change minds.

And so I find Charles Schumer especially ridiculous today. Does Schumer really think that the only thing keeping whites from maliciously repressing blacks is a line of Supreme Court decisions? Hasn't he sort of noticed that overt racism is nearly gone -- and mercilessly attacked when it shows itself -- and even covert racism is on the steep decline?

What Chuckie Schumer fears, of course, is not that that "rightwing ideologues on the Court" could possibly unsettle conensus national decisions that are so ingrained in America that they hardly need enforcement. There will be no more Rosa Parks, partly due to the fact that no one will ever ask a black woman to give up her seat on a bus to a white man just because she is black and he is white.

What he fears is that highly debatable and dubious "advancements" in civil rights -- a strong "Constitutional" mandate for quotas and the like -- will no longer have five liberal champions on the Court. He tries to scare us with bugaboos about America returning to the Deep South, circa 1953, but it's a ruse. What he really fears is that very questionable policies -- policies which are highly debatable, not mentioned or implied in the Constitution, and which should be subject to the normal process of political persuasion and then either political acceptance or rejection, such as quotas and set-asides -- will have to contend in the political arena on their own merits, without Philospher Kings dictating that the nation adopt them.


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posted by Ace at 02:12 PM

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