The Party Of Activist Judges

by Chris Bodenner

Atlantic correspondent James Warren speaks with David Strauss, a University of Chicago Law School professor with long ties to the Supreme Court. Strauss:

This President--like Clinton, but unlike the Republicans--doesn't have a Supreme Court-centered agenda. He's not trying to move the Court in a dramatic new direction or to get the Court to make important changes in society.

There's a contrast with the Republicans (at least the wing of the party that cares the most about the courts), who would like to see dramatic movement on abortion, school prayer, government aid to religion, affirmative action, property rights, maybe federalism and Congressional power. This isn't a partisan point--in the '60s the Democrats had a Court-focused civil rights agenda. But they don't now.

Gordon Silverstein drew a similar distinction in his great TNR piece on Souter, "The Last Conservative." The retiring justice has a stare decisis, or "let it stand," approach to court decisions -- the truly conservative approach. But because the Warren Court laid down a layer of liberal rulings in the '50s and '60s, Souter's tendency towards the status quo causes movement conservatives to brand him as a liberal. And so the pendulum swings.