Judging from this morning's essay, "The Court vs. Voters," WaPo columnist has drunk deep from the "Constitution in Exile" Kool-Aid. The column is so hysterical it almost defies response, but I'll make a few quick points.
Dionne warns we could be on the verge of a conservative assault on popular progressive legislation. A President Obama, Dionne warns, could face judicial opposition to his policy agenda, much as did FDR.
A new generation of conservatives wants to bring the old order back under the auspices of what's called the Constitution in Exile movement. Their driving idea is that the thrust of jurisprudence since the late 1930s voided the "real" Constitution.Please. There is only one Justice on the Court (Thomas) who has exhibited any willingness to consider overturning New Deal-style policies. The threat posed by the so-called "Constitution in Exile" movement is a myth.
Dionne cites "the spate of 5 to 4 conservative decisions during the Supreme Court term just ended" as a signal that the conservative justices, when joined by Justice Kennedy, are willing "to overturn the will of Congress and local legislatures when doing so fits their political philosophy." Yes, Kennedy and the conservatives overturned D.C.'s handgun ban and a small portion of the McCain-Feingold law, but also among the end-of-term 5-4 decisions that overturned "the will of Congress and local legislatures" were the Court's decisions in Boumediene and Kennedy, which struck down Congressional policy on Gitmo detainees and state laws allowing capital punishment for child rape. Dionne also fails to mention the Roberts Court's demonstrated tendency to reject facial challenges to various legislative policies, ranging from voter ID and lethal injection to limits on soliciting child porn and the partial-birth abortion ban. While pretending to care about voter preferences, it appears Dionne is only concerned about judicial invalidation of legislative policies he favors. He's hardly alone in this, to be sure, but it belies his reputation as a thoughtful and insightful columnist.
The whole point of a written Constitution is to place limits on the ability of popular majorities to enact their will. The issue is not whether the Supreme Court invalidates popular policies but when the Court does so. Unless Dionne is a new apostle of judicial passivism, and unbridled majoritarianism (perhaps like that embraced by Robert Bork), the argument in today's column is either disingenuous or profoundly uninformed.