A very insightful post from George Washington law professor Orin Kerr on one of the reasons conservatives tend to get so upset about judicial activism:
[i][Orin Kerr, May 22, 2008 at 1:45am] Trackbacks
Why Do Conservatives Care So Much About the Courts?: The Rasmussen Reports ( http://rasmussenreports.com/public_content/politics/election_20082/2008_presidential_election/for_republicans_judicial_appointments_matter_more_than_iraq ) survey of public attitudes towards the courts demonstrates just how much Republican voters care about the Supreme Court:
"When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq. The latest Rasmussen Reports national telephone survey found that 44% of Republicans pick the economy as the top voting issue, 30% name judicial appointments, and just 19% pick the War in Iraq. . . . Just 7% of Democrats name judicial appointments as the most important of those issues."
The fact that Republican voters care a lot about the courts isn’t exactly news. The question is, why is that true? Why are conservatives so focused on - so obsessed with - the courts?
Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court’s docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives - especially social conservatives, and especially religious conservatives - the question has been whether the courts will allow their views, not whether the courts will mandate them.
Think about abortion, school prayer, gay rights, flag burning, the death penalty - you know, the real ‘hot button’ issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference - the generally conservative view - is out of bounds.
That’s generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn’t mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.
I think this trend helps explain why conservatives today are much more focused on the courts than are liberals. Being told that the courts won’t let your views be law is a lot more painful and upsetting than being told the courts alone won’t win it for you. It’s partly loss aversion, I suspect, and partly the fact that constitutional decisions are much harder to reverse than legislative ones. Whatever the precise reasons, the cumulative experience of this happening year after year, Term after Term, starts to really hurt. It becomes a sore point, a raw wound. I think that goes a long way towards explaining why conservatives care significantly more about the courts.
If you’re unconvinced, consider some of the relatively uncommon hot-button cases when the usual valence is reversed. That is, consider a case asking the Court to ban a practice generally favored on the left. The obvious example: Race-based affirmative action. On the road to Gratz and Grutter, supporters of affirmative action weren’t unconcerned or ignorant about the Supreme Court’s involvement in the issue. Hundreds of thousands of affirmative action supporters were passionate and outspoken ï¿½?? they cared ( http://www.democracynow.org/2003/4/2/yesterday_the_supreme_court_heard_opening ), and they protested ( http://www.yaleherald.com/article.php?Article=1994 ), and they thought it was incredibly important. It was a really really big deal.
That’s just the kind of reaction you would expect when people feel that the Supreme Court might take away their right to set their own rules. And it’s a dynamic that in recent decades has been felt significantly more often on the right than on the left.[/i]