Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters."[T]he equal protection clause mandated the election of George W. Bush"? Stone's argument would be better if he didn't overstate what happened in these cases. Red meat for NYT readers — it makes me suspicious.
Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an often aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.Ah, yes. The usual red meat. What I thought he was going to say — what I've been saying — is that liberal jurists and constitutional scholars have a theory of interpretation that should be explained and defended — not portrayed as the same as what conservatives do.
You can still critique the conservatives. But I wouldn't say: "There is nothing simple, neutral, objective or restrained about such decisions." I object to the word "nothing." There is something simple, neutral, objective and restrained, but it is the nature of complex legal decisionmaking that background beliefs and understandings — Stone would say "political and ideological convictions" — affect the path of a judge's thoughts, no matter how faithfully objective he wants to be.
It isn't necessary — or believable — to assert that the judges are politicos deceitfully wielding illegitimate power. It is only necessary to say what should easily be accepted as true — that constitutional decisionmaking has more human dimension to it than the balls-and-strikes characterization would have it.