Via my cousin Nan Aron, I see that the left/liberal Alliance for Justice has released a 22-minute documentary film that takes on the conservative legal movement, Quiet Revolution (.wmv file). The video is kind of a mix between Cass Sunstein’s Radicals in Robes and Herman Schwartz’s Right Wing Justice with a bit of Article II sprinkled on at the end for seasoning. It features lots of prominent figures that many VC readers will recognize, including Harold Koh, Cass Sunstein, Drew Days, Barack Obama, and Dahlia Lithwick.
Perhaps the most interesting aspect of the video is that its left critique of the legal right is so similar to the traditional right critique of the legal left. You know the arguments: the other side wants to overturn precedent; they are judicial activists; they have a radical agenda; they want to depart from the Framers’ vision of the Constitution; they are trying to get their unpopular political preferences enacted through the courts instead of the people, etc. Of course, readers will disagree on which side has it right, or whether either or both of them do, or even whether these criticisms make any sense at all. But the similar rhetoric is interesting.
My vote for the most over-the-top commenter probably goes to Slate/WaPo/NPR analyst Dahlia Lithwick, for her remarks delivered around the 3:30 mark:
What would happen if Clarence Thomas and Antonin Scalia got their way? What is their vision for America? And if you say to people what their vision is: Say goodbye to worker’s rights. Say goodbye to environmental protection. Say goodbye to women’s rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we’ve made in terms of race and gender in this country, and privacy.
I guess you could say this. I mean, it wouldn’t be accurate, but hey, you could still say it.
UPDATE: A few commenters suggest that Lithwick’s claim isn’t entirely false, so let me explain a bit more. Lithwick is confusing two claims: (1) Right A would be different in some ways if a particular Justice had a majority, and (2) Right A wouldn’t exist at all if that particular Justice had a majority. Justices Thomas and Scalia have stated their views as to the constitutional need for changes in the institutional choices as to which parts of government should provide certain important rights: In some cases, the issue has been state vs. federal, and in others, the issue has been legislatures vs. courts. But as far as I know, all of their views have related to institutional choice, not substantive rights. Thus (1) may be true but (2) is clearly false. I assume Lithwick knows this, and is simply exaggerating her claim to make it seem more powerful: If you want people to rally in opposition to a position, you want to make that position seem as dangerous as possible. But doing so often comes at a cost of accuracy, and I think it did so here.