I was struck by the fact that here we have a whole article discussing what the Left ought to do about the shifting ideology of the Court...with nary a word as to what kind of jurisprudence the writer would propose ought to be used to counter the originalism, textualism, and conservatism that the majority of the Court employ (Justice Kennedy perhaps only occasionally). Fine, you don't like the reasoning that Justices Scalia and Thomas employ -- so what would you replace it with? What's your argument that this new approach is actually superior to theirs? Is it even the kind of jurisprudence that would be appropriate in an "aggressive" way?
That is the Left's real problem. When it comes right down to it, there is no real jurisprudence of the Left. There's a list of political outcomes that are desired (many of which I think are worthy at least on paper, although better suited to the legislative realm), but no real understanding of how to achieve these results jurisprudentially without making it look like a nakedly political power grab. Most of those on the Left I have spoken with have realized that Roe, while politically "correct," is jurisprudentially awful. You don't want that to be your model. But what is, then? Active Liberty tried to take a stab at it, but the ripples were modest at best compared to the influence of Justice Scalia's A Matter of Interpretation. The Left needs to do better than that.
But I doubt it can. The real answer to a conservative Court is for the Left to take hold of the legislature and pass laws that overturn disfavored rulings. When the Court makes a ruling on statutory interpretation that the Left doesn't like, fix the statute and the conservatives on the Court will follow it. That's one advantage of a conservative Court -- they'll actually follow the law when it's in front of them. Don't be upset that they interpret a grey area in a way you don't like. Fix the grey area.
