Distinguished University of Chicago law professor Cass Sunstein has an OpEd in today’s Los Angeles Times discussing the “three dramatically different attacks on the federal judiciary” launched by “conservative politicians” over the last fifty years.
I have no particular quarrel with his discussion of the first two of these, the call for judicial restraint beginning in the mid-1950s and the call for “originalism” beginning in the 1980s. And even much of his discussion of the “third wave of attack, in which originalism is receding, and in which many conservative politicians want judges to read the Constitution, and the law in general, as if it fits with the Republican Party platform,” though definitely reflecting a partisan slant, is not objectionable. But that is not true of the following:
In recent years, some conservative politicians have been insisting that federal judges should strike down affirmative action programs, protect commercial advertising, invalidate environmental regulations, allow the president to do whatever he likes in the war on terrorism, use the Constitution to produce tort reform, invalidate gun control regulation, invalidate campaign finance laws and much more
“use the Constitution to produce tort reform”
Oh my.
Xrlq, you are ignoring the penumbra of the emanations. And, I might add, international law. These are certainly thingy-dingys that any given liberal judge can find in any given portion of the Constitution, depending upon whatever short term need requires it. We simply need to get them appointed in sufficient numbers and they will make the Constitution anything we want it to be. Unfortunately, we don’t have a penumbra that requires the election of liberal Democrats. Yet.
Tort reform by Constitution is a stretch, however, it’s not without precedent among the imperial judiciary Sunstein seems to love. In BMW of North America v. Gore (1996), the Supreme Court held an extremly high punitive damage award unconstitutional. Adding a further layer of irony, that decision was written by the Court’s most liberal member (Stevens), while the three most conservative members (Rehnquist, Scalia and Thomas) dissented.