Bench Memos

Law & the Courts

Another Candid Liberal

More evidence (on top of Erwin Chemerinsky’s essay from a month ago) of the Left’s eagerness to rewrite the Constitution through judicial invention:

On Balkinization, Harvard law professor Mark Tushnet encourages liberal judges and advocates to abandon “defensive-crouch liberalism” and instead to “take aggressively liberal positions.”

I confess that I had no idea that liberal claims to things like a constitutional right to same-sex marriage were taken from a defensive crouch. They sure seemed aggressive to me.

I also think that Tushnet is badly confused when he seems to suggest that the conservative characterization of various constitutional disputes as “culture wars” somehow means that conservatives were the aggressors in those wars. No, the conservative position on all (or nearly all) of those disputes—over abortion, marriage, and so on—is that the Constitution leaves the matter to the legislative processes for decision and that the Left’s insistence that the Constitution enshrines its favored policy positions is an aggression against the body politic.

That said, here are excerpts from Tushnet’s agenda, with some commentary from me:

– “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided.” Yes, liberal claims for adherence to precedent were phony all along.

– “The culture wars are over; they lost, we won.” Better to “tak[e] a hard line” than to “accommodate the losers.” A surer recipe for pervasive discord could hardly be scripted. Yet another reason to fear that our great country is doomed.

– “Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.” Again, so much for any effort at faithful adherence to precedent.

– “Finally (trigger/crudeness alert), f*** Anthony Kennedy.” Except that Tushnet doesn’t even use asterisks. Kennedy will indeed be rendered irrelevant to the Left if the Scalia vacancy is filled with a liberal.


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