Monday, May 13, 2013

‘The Federalist Society,’ by Michael Avery and Danielle McLaughlin -

By the time Ronald Reagan left office almost half of federal trial judges had been nominated by him.  In a remarkable switch (e.g. Eisenhower's policy was half Dems, half GOP), the new judges were young and conservative.  The Federalist Society went from fringe to transmission belt.  
Although the conservative talking points always attacked "judicial activism", they had a broad agenda: use the principle of judicial review to strike legislation that was inconsistent with their conservative view of the Constitution, which they called "originalism".  But this ideology was in fact activist - courts could strike any legislation that did not fit their constitutional philosophy.  We saw that most strikingly when the Affordable Care Act survived by a single vote in the Supreme Court. 

In an embrace of "tough luck libertarianism"  all five conservative justices found the Congress had no power under the commerce clause to mandate health insurance.  All five would have voided the entire 2,000 page statute but Chief Justice Roberts saved the court from that maelstrom by finding the taxing power sufficient to uphold the most important domestic legislation in fifty years.  So much for the conservative assault on "judicial activism".   - GWC
‘The Federalist Society,’ by Michael Avery and Danielle McLaughlin -
review by Jeffrey Rosen
“There is much that citizens from all points on the ideological spectrum can learn from the story of the Federalist Society,” Avery and McLaughlin conclude. And indeed there is. Although they don’t spell out the lessons for liberals, at least two emerge from the data they present. First, the various strands of legal liberalism — civil libertarians, Great Society liberals, neoprogressive technocrats, economic populists and advocates of equal rights on the basis of race, gender and sexual orientation — would do well to set aside their ideological differences and converge around a common approach to constitutional interpretation that citizens can understand. And second, if liberals want to take the courts back from conservatives, they have to recognize that ideas — and judicial appointments — matter."

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