Matt Yglesias makes a point that I’d been meaning to make:
Just a word on Eugene Volokh’s ongoing dispute re: Brown v. Board of Education with Paul Craig Roberts. Regarding the subject, Roberts invokes some classic tropes of “judicial activism”:
Thurgood Marshall was one of them when, in the climax of the NAACP’s campaign to end segregation by judicial flat, he stepped up to the Supreme Court’s podium at 3:15 P.M. on December 9, 1952. It was strange that the great moral issue of the day was being debated in the Supreme Court instead of across First Street in the U.S. Congress or in state legislatures.
Now normally the point of this sort of complaining is that judicial action runs contrary to majoritarian democracy. Given the reality of the Jim Crow South, however, majoritarian democracy could hardly have been said to be in play. We’re talking a time before the Voting Rights Act when African-Americans couldn’t participate in the political process and when many poor whites were also disenfranchised. . . .
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