Nice meeting on Thursday on the right to privacy, although a little dry. In follow-up, I wanted to emphasize the crucial role that the Supreme Court can and has played in expanding our rights. I said at the meeting that the 1960s-1970s produced a redefinition of civil liberties to include, among others, a modern interpretation of privacy. Jim Z. mentioned that the Supreme Court played a key role, but I dropped it and we never explored it.
The importance the Court played in all of this can hardly be overstated. The Right is correct: The Warren court during 1960-69 created a rare in our history revolution in Constitutional law. To quote a book I just read (too late for TH):
It is one of the [1960s’] most striking ironies that if the rights revolution began in the streets, it achieved constitutional legitimacy through the Supreme Court, historically the most conservative branch of government. Under…Earl Warren the court vastly expanded the rights enjoyed by all American citizens, and placed them beyond the reach of legislative and local majorities…
The court pushed forward the process of ‘incorporating’ the Bill of rights. The states were now required to abide by [its] protections.
The Warren court not only vastly expanded the substantive protections of the civil rights and civil liberties of all Americans (especially those likely to suffer discrimination at the hands of local majorities, but discovered new rights in response to the changing contours of American society.
He goes on say that the discovery of a right to privacy was the most dramatic and controversial.
Now, most of what the Warren court did is now widely accepted by Americans, outside of the religious right I suppose (abortion, Miranda), although they also triggered a huge conservative backlash that is still with us. I just think the targets of their anger have shifted from the culture war they lost to the one that’s currently with us (immigration, Muslims, liberal elite hating, etc.).
This period illustrates how important — and dangerous, I guess — it can be when the courts take sides in political debates, as the Warren court did and the Rehnquist/Roberts courts are doing.now. The next 10-15 years, depending on appointments, may be similar to the 1880s-1930s. Today’s federal courts, stacked by Republican appointees and a GOP minority in Congress breaking all historical norms of blocking the other side’s judicial nominations, are back to their more traditional role as guarantor of establishment interests and power. The Citizens United decision, that overturned decades of established law and allows literally unlimited corporate money in political campaigns may be a portent of things to come.
I doubt the Court will begin striking down Obama’s policies en mass, if for no other reason that he has made no earth-shaking new laws and certainly will not be able to after November. Lifetime judicial tenure now means 25 or even 30+ years, since they get appointed or elected young and live so long. .
This is why I like to talk about Constitutional law so much. 😉