If judicial review means that the U.S. Supreme Court is a de facto super-legislature that can in effect supersede actual legislatures, that’s fine with Washington Monthly blogger Martin Longman. In a Wednesday post, Longman acknowledged that certain SCOTUS rulings over the past several decades have been politically motivated, but argued that those were appropriate remedies for the “deplorable and inexcusable wrongness” of conservatives on issues such as abortion.
Longman’s peg was Charles Grassley’s speech this past week criticizing recent SCOTUS decisions, such as the two in favor of Obamacare, that in Grassley’s view were based on “policy preferences” rather than on the Constitution.
From Longman’s post (bolding added):
Conservatives used their political power to defend a system of racial apartheid, to prevent the liberation of women, to impose their religious superiority, and to discriminate in general, including against the LGBT community. And the Court stopped them either completely or partially.
Thereafter, controlling the Court became the only way for Conservatives to reverse these changes…
After all, if the Democrats win big majorities in Congress, they can achieve their goals, like vastly expanding access to health care. But Republicans cannot ban abortion legislatively unless they can amend the Constitution. They can’t re-ban gay marriage legislatively, either…
Why has the Supreme Court acted politically to stymie conservative values? Why did the Warren Court end apartheid? Why did the Burger Court legalize abortion? Why did the Roberts Court legalize gay marriage?
The answer every time is that the [Court] did it because the Conservatives would not budge. And that’s why Teddy Kennedy wasn’t being too overdramatic when he opposed the nomination of Robert Bork by saying:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
It might not have been true that Bork would have gone that far if he had been confirmed. Even he recognized that the country had changed. But ‘Bork’s America’ stood in the way of desegregation and legal abortion and secular public schooling, and without a Supreme Court to step in and intervene, this country would have remained Bork’s America.
Which means, in my book, that the Supreme Court acted politically because Conservatives were so deeply wrong. Of course it would have been preferable for legislatures to do the right thing rather than relying on the Court to rectify things, but we could only wait so long. Were we forever going to try to compete with the Soviets in the Third World while operating a system of apartheid in our Southern states?...
…[T]he Supreme Court [acted] to overcome the deplorable and inexcusable wrongness of the Conservative Movement.
