Concedes Dahlia Lithwick, pondering why liberals (supposedly) don't excoriate the Justices who disappoint them. She notes that "there is a long tradition of liberal counter-argument to the laissez-fair [sic] constitutional vision put forth by the court’s five conservatives," but "'liberals have largely forgotten how to think, talk and fight along these lines.'"
There are 2 — at least 2 — obvious responses.
1. Liberal Justices don't disappoint. The liberal Presidents have gotten what they sought, and they haven't had the equivalent of Blackmun, Stevens, O'Connor, Kennedy, Souter, and now, perhaps, Roberts to complain about. When you're getting what you want, you keep your mouth shut.
2. Those liberal constitutional theories that get a lot of play in the legal academy don't sound right when spoken out loud in the context of public discourse aimed at ordinary people. Go ahead, put those liberal theories into clear, comprehensible words and lay them out there for the general public to compare to what conservatives say about the Constitution. The conservative theory, put clearly, is compelling to ordinary people. And Lithwick is most certainly not putting the conservative theory clearly by referring to it as "the laissez-fair constitutional vision."
It's laissez-faire, not laissez-fair, but quite aside from that, what is Lithwick trying to say? Conservatives talk about following the text and being faithful to the historical meaning of the text. Laissez-faire refers to leaving things alone. Lithwick makes it sound as though the "liberal counter-argument" is to interfere with the Constitution — to rewrite it. (I assume she thought she was saying that conservatives like laissez-faire economics, but that's not in itself a "constitutional vision.")
Lithwick complains that liberals don't know how to "think, talk and fight," but she has a problem with the way she thinks, talks, and fights as she's trying to register her complaint. Why is that?
There are 2 — at least 2 — obvious answers.
1. Lithwick is really only talking to liberals. It's a closed circle, where you never have to figure out how to speak comprehensibly and clearly, because you are all so self-assured and complacent about the goodness of your beliefs. It's babble, not intended for outsiders.
2. It really can't be made clear.