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Heed this warning

Dahlia Lithwick has a warning for Senate Democrats heading into Sam Alito’s confirmation hearings that they’d do well to heed:

It will, unless Democrats get it together, become yet another Jerry Lewis telethon, raising national awareness about the dangers of “judicial activism” and the plague of “the reckless overreaching of out-of-touch liberal elitist judges.” Democrats in the Senate either will not or cannot put the lie to these trite formulations. They need to shout it from the rooftops: that blithely striking down acts of Congress is activism; that the right’s hero Clarence Thomas may be the most activist judge on the current court; that reversing or eroding long-settled precedent is also activism; and that “legislating from the bench” happens as frequently from the right as the left.

I actually think this is a charge for all liberals and progressives. When your colleagues, friends at a holiday party, or family members at Thanksgiving bring up word one about “judicial activism” and “out of control judges,” it’s up to you to broaden their outlook.

1 Comment

  1. From “Breyer’s Big Idea” in the Oct 31 New Yorker (p. 38):

    Indeed, according to an analysis by Paul Gerwirtz, a professor at Yale Law School, and his student Chad Golder, of Supreme Court decisions between 1994 and 2005 addressing the constitutionality of sixty-four congressional provisions, Breyer voted to strike down laws twenty-eight per cent of the time — less often than any other Justice. Clarence Thomas voted to overrule Congress sixty-six per cent of the time, more than any other Justice.

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