E. J. Dionne Considers Judicial Activism on the Right

Practical Voice for Partisan Times
E. J. Dionne Jr. in the Washington Post

Barely an hour after Justice Sandra Day O'Connor had announced her resignation from the Supreme Court yesterday, the goal of all liberals and moderates was clear: To replace the retiring justice, President Bush should name someone just like her. From Democratic quarters, you could almost hear the orchestrated shouts of "We love Sandra."

It's odd that O'Connor, in an instant, became a liberal hero. In many ways, she is the most profoundly conservative justice on the court. Cass Sunstein, a law professor at the University of Chicago, noted that she is a particular kind of conservative, an implicit follower of the philosopher Edmund Burke, "someone who likes tradition, respects incremental change, doesn't like revolution."

But the Burkean disposition is not what animates the political movement that now flies under the colors of conservatism. The judicial right is seeking anything but continuity. It wants a revolution of its own -- or perhaps a counterrevolution. And unlike O'Connor, who liked her decisions very particular, the new conservatives love sweeping abstractions. To them, a case-by-case approach is as unprincipled as it is unexciting.

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...all the sweep now is on the right. There is not simply an eagerness to strike down precedent, notably Roe v. Wade . There is also -- in what has come to be known as the movement for "the Constitution in Exile" -- a desire to roll back most of the developments in jurisprudence since the early 1930s. This movement would strike down the regulatory state created during and since the New Deal.

The danger for moderates and liberals is not the end of liberal judicial activism -- those days are over -- but the onset of a new era of conservative judicial activism. You'll never know it in the commotion of the coming months, but the O'Connor succession fight is not primarily over Roe . The real battle is over whether new conservative judges will roll back the ability of elected officials to legislate in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights.

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