THE RIGHT COURT FIGHT

E.J. Dionne Jr. Washington Post

Monday, April 26, 2010

The genius of American

conservatives over the past 30 years
has been their understanding that
the most effective way to change
the country is to change the terms of
our political debate. On issue after
issue, they have done just that.

Sensible regulation was cast as a

dangerous quest for government
control. Modest measures to
alleviate poverty became schemes
to lock the poor into "dependency."
Advocates of social insurance were
condemned as socialists.
Government was said to be under
the sway of a distant "them," even
though in a democracy, government
is the realm of "us." And attempts to
achieve a bit more economic
equality were pronounced as
assaults on liberty.

Nowhere has the conservative

intellectual offensive been more
effective than in transforming our
discussion of the judiciary. That is
why the coming clash over
President Obama's next Supreme
Court nominee is so important.
Above all, it should become clear
that the danger of judicial activism
now comes from the right, not the
left. It is conservatives, not liberals,
who are using the courts to overturn
the decisions made by
democratically elected bodies in
areas such as pay discrimination,
school integration, antitrust laws
and worker safety regulation.

If anyone doubted that the Supreme

Court's current conservative
majority wants to impose its view
no matter what Congress or state
legislatures decide -- or what earlier
precedents held -- its decision in the
Citizens United case should end all
qualms.

In granting corporations an
essentially unlimited right to spend
money to influence the outcome of
elections, that ruling defied decades
of legal precedents and
congressional enactments. The non-
elected branch of government
decided it didn't like existing
legislation, so it legislated on its
own.

Justice John Paul Stevens, whose

retirement will open up a seat on the
court, offered one of the finest
dissents of a distinguished career
when he noted that to arrive at the
result it did, the court majority not
only violated precedent but also had
to reach beyond the case at hand to
do so.

"Essentially, five Justices were

unhappy with the limited nature of
the case before us, so they changed
the case to give themselves an
opportunity to change the law,"
Stevens wrote. Now that is judicial
activism.

Stevens added: "In a democratic

society, the longstanding consensus
on the need to limit corporate
campaign spending should
outweigh the wooden application of
judge-made rules." Citizens United
is an extreme case of a general
tendency: Conservative judges are
regularly invoking their alleged
fealty to the "original" intentions of
the Founders as a battering ram
against attempts to limit the power
of large corporations. Such entities
were not even in the imaginations of
those who wrote the Constitution.
To claim to know what the
Founders would have made of
Exxon Mobil or Goldman Sachs or
PepsiCo is an exercise in arrogance.

So this time around, let's have a new

court debate that focuses on more
than just where a nominee stands on
Roe v. Wade. Let's remember that
the truly "elitist" judges are the ones
who protect the privileges of the
powerful over the right of Congress
to legislate on behalf of workers,
consumers and the environment.
Let's ignore the claims of
conservatives that they are opposed
to "legislating from the bench,"
since it's their judges who are now
doing the legislating. If liberals can't
successfully challenge them on first
principles, they'll never win the
fights that matter.