The Limit of Political Narratives

TMcD fires off a response to my earlier post on process theories of judging. TMcD is right, that the post I was responding to was more about politics than about theories of judging, per se. The issue, of course, is how does a political movement generate a narrative to both criticize the courts, when its useful, and defend the courts, when needed.

The problem with the idea, implicit in Publius' and TMcD's arguments, is that both assume that one can generate a political narrative . . . from scratch. But that's not how conservatives came up with "judicial activism." They came up with "judicial activism" as a response to particular decisions, including, most famously, Brown v. Board of Education and Roe v. Wade. The reason that the narrative works is that it is both an arguably accurate description of the decisions in question and reflects the dislike of conservatives, especially, of the decisions in question. (At least at the time of the decisions, in the case of Brown.) Or, maybe more accurately, "judicial activism" taps into the anger of many conservatives with judicial decisions.

But the point here is that the term taps into anger with particular decisions.

Publius may be trying to generate a narrative with Hamdan, but I think this is misguided for a couple of reasons. First, in order to generate that political narrative, I think you have to lose the case in question. Think Dred Scott, in addition to the cases mentioned above. So, to the extent liberals "won" Hamdan, I don't think one can generate political support based on, well, agreement with the decision. If anyone is angry with Hamdan, it's not liberals.

Second, I don't get a sense that Hamdan's "rule of law" approach is a very useful one, at least with respect to the courts (it may be more useful with respect to Bush administration policies). Is government lawlessness a more generalized problem? Maybe, but I'm not that sure.

Finally, I think that one shouldn't argue, too much, within the "judicial activism"/"judicial restraint" framework. If I'm right, descriptively, that these concepts are pretty worthless, then one must rethink their normative usefulness. In addition, I think that liberals should be proud of the Warren Court's so-called "activism" and not accept a "restraint" meme that tells us that the Court's greatest accomplishments were flawed because "activist." Liberals need to realize that Brown, the granddaddy of "judicial activism," is probably the single most popular Court decision of all time, the one decision that laypeople point to, to support the proposition that the Court protects our rights.