The piece starts out by mentioning how Justice Warren's decision in Brown v. Board of Education used the 14th Amendment (equal protection) to find "separate but equal" unconstitutional. The argument becomes clear about a third of the way in, when the author states that "As the members of the court were aware, however, the history of the Fourteenth Amendment was very conclusive that segregation was not a constitutional problem." He then goes on to essentially bash judicial activism at the highest levels.
I don't agree with all of his points. For example, I think that Lawrence v. Texas, striking down a law banning male-male sodomy, was a good decision. Not just from a moral standpoint, where I think my opinion is clear to anyone who knows me well, but from the standpoint of the powers of a federal court to rule on such a thing. Why? Because the ruling relied heavily, if I remember correctly, on the fact that the law specifically did not ban male-female sodomy, and therefore lacked the ability to pass an equal protection litmus test.
But in many cases, he has a good point. I've long thought that lawmaking from the bench was a problem, even when I tend to agree with the laws. There are no checks and balances with such a thing, no easy way to repeal or modify such laws if necessary. There is no constitutional basis for a lot of these decisions. And in some cases, federal courts come awfully close to just trampling all over states' rights.
I'm really starting to wonder whether I'm opposed to Roe v. Wade. It's not because I'm opposed to abortions, even though I think I am--in nearly every instance in which I have a right to an opinion, which is almost never. I support a woman's right to choose. But I don't support the fact that it came from the Supreme Court. I don't see anything in the U.S. Constitution preventing a state from making a law banning abortions. I've heard that it's either a very right-wing thing or a very 19th-century thing to read the Constitution as literally as I am, but I don't see the justification for reading between the lines. And it's quite a stretch, for me, to go from the text of the Constitution to not just a ruling permitting abortions in some cases, but one permitting or denying them on such a rigorous timetable based on trimesters.
And not only did the Supreme Court overstep their authority with Roe v. Wade, along with several other decisions mentioned in the column, but Roe became an even bigger problem when it made the Court, to quote The West Wing, a one-issue body. The most important thing in politics, for a lot of people who vote the way I do, is to keep a 5-4 majority in favor of choice on the Court. The Court has so many other important issues to deal with. For me, the civil liberties and 1st Amendment ones are the most important. For other people, other issues may be. But no one cares about those things any more. Wouldn't a federal law about abortion, or even better, a series of state laws, better serve our country?
Whether you agree that Brown v. Board of Education was the catalyst for this judicial activism problem, and I think it's a shaky point to make, it still seems to be a valid, if overemphasized, point that "Because of Brown, representative democracy has been replaced, on the most consequential issues of our time, by the reign of judges". Wouldn't it make more sense for the Legislative branch to reclaim some of its constitutional powers from the Judicial and Executive (another problem which I don't want to go into here, but doesn't it seem strange that our president can declare war now) branches? And then for the people to reclaim control over the Legislative branch from lobbyists, campaign donors, and computer-drawn gerrymandering maps? It would make me a lot happier, at least.