It's been a very long time--more or less since 1938--since political liberals/progressives have had this much reason to fear activist courts, and the Supreme Court in particular, or to rethink their commitment to venerating the special legitimacy of judicial action (or the fund of moral capital once possessed by the Court). For me, the critical moment was 2000's Bush v. Gore decision; for many others, perhaps even more reluctant than I to face the turn of an era, the term just past did the trick.

There can be little doubt that the formalisms of the Court's conservative majority are empty of principle; they mostly provide cover for what is, indeed, a broad ideological agenda to remake our law (or, if you prefer, to return to the pre-New Deal dispensation, or that of a century ago). Despite the rhetoric of minimalism favored by Justices Roberts and Alito (eviscerating precedents without explicitly overruling them), there is no "judicial modesty" in this gang of four (mostly now five); they are out to wipe away the legacy of evolutionary progressive change that has characterized the past three generations of American life, since the Great Depression.

Much legal commentary is cloaked in elaborate institutional deference to the Court. I believe that deference is unwarranted, and increasingly counterproductive.

When the Court acts in ways that are nakedly political, the legal academy and other serious commentators should not pretend the imperial judiciary is attired in splendid finery. We (I am a law prof at a pretty well-regarded law school) should call it as we see it, in all its naked ugliness, and without the pretense that "law", as currently practiced by the majority of this Court, is beyond politics.

There may be some room to debate the past (although persuaded by the realist critique, I was not a member of Critical Legal Studies, and was long reluctant to give up on law as a potential force for good, rather than primarily an instrument of oppression). But the present is blindingly clear to those who can read. It is past time to let the public in on the secret; this Court has hijacked the law as we have known it, and it is our obligation to say so.

--The Wise Bard (http://TheWiseBard.blogspot.c­om)

And what of the "judicial modesty" of the Warren-era Court? Broad, sweeping changes in constitutional jurisprudence have not been confined to the Roberts Court, or the Rehnquist Court for that matter. In fact, the Roberts Court decisions have been positively mild compared to many of jarring decisions (both good and bad) that have been issued over the history of the Court.

I am fine with you being happier with decisions in the past that embraced a jurisprudence better aligned with your own, but your outright dismissiveness of the jurisprudences of those who differ from yourself leads me to believe that this is just outrage, not scholarly critique. You are not the only one with a notion as to what it means to "hijack the law." You are going to have to address the merits of what is said rather than dwell on self-serving canards, because it is safe to say that not one Justice on the Court thinks that he or she is "hijacking the law" by ruling a particular way, and it is highly disrespectful to accuse them of such -- especially from the sterile hallways of academia -- without a word of consideration for why they have ruled the way they did.

I've blogged extensively on a number of recent decisions. Take a look. This was not the time or place for a comprehensive analysis (and I agree that specifics are appropriate for a more scholarly venue--I haven't noticed much of that here, or on most boards). You are also correct that my posting reflects outrage, although an outrage born of knowing the law and something about judicial process. And the ability to recognize when pap about "judicial modesty" is bullshit. (My own view is that such "modesty" is appropriate in some settings and legal contexts and not in others--a longer conversation.) For the most part, I think the Warren Court was right not to be "modest" in trying to repair the failings of American democracy (as with desegregation and reapportionment and many areas of civil liberties). The problems it was addressing were not themselves modest.

Of course every judicial era has its supporters and critics, and what one sees depends on where one is looking from (and the spectacles one is looking through). Judicial action at the level of the Supreme Court necessarily implicates values, and, in some sense, politics. (Politics can be "high" or "low", and recently have been pretty low.) I have fairly low tolerance for those, including Justices, who pretend otherwise, especially in grossly misleading/dishonest nomination hearings/performances. In that sense, I'll admit a grudging admiration for Robert Bork's honesty about his views during his hearings. (Those views, imho, justified voting against him on their substance; others, of course, can and do differ). His behavior since his failed nomination makes me more sure now than I was then that his nomination should have been defeated.

On substance--to be very brief--I favor those true to the reconstruction of our political community through the promises of the post-Civil War amendments--particularly the due process and equal protection clauses (and privileges and immunities of citizenship, which never got very far) of the 14th amendment. That includes fuller realization of the democratic promise of American life (particularly through robust civil rights and liberties of natural persons) and greater inclusivity of our society, with a real commitment both to equal opportunity and tolerably decent outcomes for a dignified life for all. It also includes judicial response to non-self-correcting flaws in the functioning of our democratic machinery (Carolene Products fn 4 for the lawyers out there)--such as some version of one person, one vote representation, and--I would argue--some attention to curbing the abusive and corrupting influence of money in politics.

I acknowledge a spectrum of respectable views on the relative roles of the judiciary and the explicitly political branches (whether they are truly democratically accountable is a trickier question at present) on some of these issues. But that's a much longer conversation.

Finally, I don't think the members of the Court who violated their principles to select Bush president in 2000, or who dissimulated mightily (if they did not in fact commit perjury) in their nomination hearings, merit more respect than I accord to them. Through their actions, they have forfeit the respect that their institutional positions might otherwise call for.

First, you must forgive me, but I have an innate suspicion of anyone who deems him- or herself "wise."

Second, I am also skeptical of a demand for "judicial modesty" that conveniently sidesteps judicial immodesty that just happens to be in ideological synch with the speaker.

I thank you for laying out your jurisprudence in a brief fashion, and I must admit that it sounds good, albeit hopelessly arbitrary for my tastes. Instead of looking at the Constitution for what it is -- an underlying structure with amendments grafted on -- you have chosen to impose certain values inspired by particular amendments upon the whole thing. These values are sometimes in direct contradiction to the existing Constitution. For example, your wish for "one person one vote," while perhaps ideologically laudable, is most definitely not part of our electoral system, which not only allows different methods of counting votes (with differing error rates) based on where you live, but also assigns two Senators to each state regardless of population. Trying to shoehorn your principle into the Constitution is, essentially, impossible. Not without engaging in some serious judicial immodesty, to put it politely.

Which brings me to an interesting thought. You say that the equal protection clause of the Fourteenth Amendment is of particular importance to you, along with "one person one vote," and that these are values to employ when analyzing the Constitution. As I pointed out in the previous paragraph, it is already the case that there are a wide array of methods for tallying votes, methods that differ from state to state as well as from district to district within a state. Some methods for counting votes have particularly low error rates (touchscreen), and some methods have particularly high error rates (punchcards, especially the infamous "butterfly ballot"). The methods with low error rates cost more, and are only found in areas with a high tax base -- i.e. the rich. The methods with high error rates cost less, and are typically found in areas with lower tax bases -- i.e. the not-so-rich, and especially poor. On its face, then, we have a pretty obvious equal protection problem, as the votes of the rich will tend to be counted more often than the votes of the poor.

Now along comes Bush v. Gore, and we have a situation where the Florida Supreme Court has ordered a recount amount the different districts, but has not mandated a standardized method of counting the votes. So not only do we have different districts with different methods and different error rates, but now we have districts with the same methods but different error rates since each will likely be having its votes recounted under different standards. If the former issue is an equal protection problem, then how can this not be also?

Mind you, I think the equal protection argument was a poor reed to rest an opinion when the obvious and more pressing issue -- that the Florida Supreme Court had nakedly ignored Florida law to impose its own version of an election upon the state after the votes had already been cast -- existed. It is hard to imagine a more egregious example of judicial immodesty. But that brings me back to my second comment expressing skepticism of those who demand judicial modesty but then curiously ignore the judicial immodesty that happens to agree with them. The people who rail on and on about Bush v. Gore rarely, if ever, have read a word of the Florida Supreme Court's opinion. It's a shame, really. You're quite right in the end, I'm afraid -- politics does play a large part in the judicial sphere. Unfortunately, most people only bother to notice it when it opposes them.