Jeff Shesol, a presidential speechwriter during Bill Clinton’s second term as well as a book and comic-strip author, posted a piece Friday on The New Yorker’s website about “how Republicans have learned to stop worrying and love the lawsuit” – or, less charitably, about conservatives setting aside their traditional opposition to judicial activism whenever an activist decision would benefit them.
Shesol argued that on matters such as Obamacare and gun control, “the right is having it both ways when it comes to the courts…[C]onservatives are doing exactly what they say the left has long done: rushing to litigate political questions, elevating all manner of disputes to the level of high constitutional principle, and asking judges to settle (or revisit) policy arguments that ought to be resolved by legislators or voters.”
From Shesol’s piece (emphasis added):
It’s hard to overstate the role of lawyer baiting, litigation hating, and activist-judge bashing in the electoral success of the G.O.P. since the late nineteen-sixties…That loathing, by now, is bred in the bone. In the conservative lexicon, there are few epithets worse than “liberal trial lawyer”; Republican ads are presently flinging it at Democratic gubernatorial candidates in Georgia and South Carolina.
But, as [John] Boehner’s [lawsuit against President Obama] reveals, the right is having it both ways when it comes to the courts. Attacks on excessive litigation notwithstanding, conservatives are doing exactly what they say the left has long done: rushing to litigate political questions, elevating all manner of disputes to the level of high constitutional principle, and asking judges to settle (or revisit) policy arguments that ought to be resolved by legislators or voters. If the Affordable Care Act can’t be repealed, despite dozens of attempts, it can be undercut by judges, as in the Supreme Court ruling in the Hobby Lobby case. If the National Labor Relations Board can’t be shut down, the Presidential power to make recess appointments—which has kept the agency running—can be curbed, possibly for good, as last month’s Noel Canning decision portends. And if Obama can’t be impeached, well, he can be sued.
That Republicans have learned to stop worrying and love the lawsuit…is a measure of their success in remaking the judiciary and reshaping the legal environment over the past forty years. Republicans still rail against the liberal legal élite, but there’s a hollowness to their claim that activist judges are regimenting our national life in the name of social progress and a living Constitution. It is, instead, the conservative legal establishment in the catbird seat, enjoying, more than at any time since the nineteen-twenties, a defining influence on the law. After five years of an Obama Presidency, the federal bench may now be evenly divided between Democratic and Republican appointees, but the latter are still on the offensive, and still gaining ground.
…[C]onservative justices have opened the courthouse doors to the kind of litigation they like: challenges to long-established policies and precedents regarding race, religion, campaign spending, and the rest of the right’s policy agenda. Victories in landmark cases like Citizens United (which brought you the Super PAC) and Heller (which gave you a right to armed self-defense) and Shelby County (which assured you that minority voting rights are no longer at risk in the South) have encouraged right-leaning litigators to swing for the fences. Not every at-bat yields a home run, of course, but the percentage is high. Boehner is pretty certain to strike out here, but you can’t blame the man for liking his chances.