Chaos was bothered by Nicholas Kristof's recent column in the Times, and after a few glasses of wine, this reply emerged:
Nicholas Kristof ("Order in the Court, NYTimes, October 5) makes an attempt at evenhandedness, as is his habit, in chastising both liberals and conservatives for relying on the Supreme Court to engage in judicial activism for their own particular causes. His efforts, however well-intentioned, fail to persuade. First, the "liberal"examples he cites, without exception are decisions which ocurred well in the past and now reflect mainstream thought (desegregation, Roe, private discrimination, various freedom of speech issues). He then follows these "examples" of judicial activism with a disclaimer (these were "manifestly right"and "fine justice," but achieved through the"torturing" of the Constitution). Next, Kristof postulates that these decisions were not well-received by the man in the street (or "ordinary Americans in the heartland," as he puts it--could this possibly be code for redstaters? fundamentalist Christians?). I suppose that really is the heart of the problem, when a majority (or vocal minority, perhaps) simply refuse to believe in the racial desegregation of schools, that accused persons without financial means ought to be provided free legal counsel, or that perennial issue before Congress, that the burning of the flag does not constitute free speech. I suspect Kristof is afraid to openly state what this column tapdances around: that it is in fact the Court's role to step in when all other branches of government have simply refused to address the "inalienable rights" guaranteed by the Constitution. When the will of the people, as expressed through the legislative and executive branches, is simply wrong, it falls upon the Court as a last resort to provide redress. There is no requirement that the decisions rendered from such a state of affairs need be popular, and indeed it may be a perverse measure of a decision's "rightness" that it is unpopular. Further, it is significant that Kristof cannot cite any specific examples of "conservative" judicial activism, much less any of the stature of Brown, Roe, Gideon, or Miranda. The reason for this is most likely that conservative judicial activism consists simply of striking down laws that conservatives do not like. Kristof's evenhandedness, far from illuminating these issues, serve merely to obscure the obvious truth: conservatives have used the "judicial activism" label as code for judges who decide the issues before them contrary to conservative orthodoxy, whatever that may be.
Don't look for this letter to be published (alas, it exceeds the 150 word limit, and Chaos was not inclined to edit). Chaos cares nothing for recognition....