If you watched the confirmation hearings for Justices Samuel Alito and John Roberts with an uncritical eye, you may have been under the impression that these future justices were exactly what America's legal system needed.
We supposedly had two justices who were going to honor and obey precedent while respecting the office they would eventually serve in — a pretty good plan for a judge to follow. Unfortunately for us, as Robert Burns would say, the best-laid plans of mice and men often go awry.
When Alito and Roberts arrived at the court's steps, they appeared to be changed men, trading in their mantras of judicial restraint for a more audacious ensemble as activists. Alito and Roberts joined forces with the existing three conservative justices to form a new conservative quintet, changing law as fast as the cases came on the docket.
The quintet notably changed law on student speech, school segregation and reproductive rights, in addition to limiting citizens' ability to file suit against the government for funding religious organizations. Liberals were rightly outraged by some of these decisions, which overturned years of established case law, and they chose not to remain quiet.
These rulings were so bad that even Justice Stephen Breyer, in an uncharacteristic approach, attacked one conservative ruling by saying, "It is not often in the law that so few have so quickly changed so much."
While liberals may want to point blame at the conservatives for changing so much so fast, they really can only blame themselves for what has happened with this court. They relied too much on courts as the catalyst for change and ignored other venues when necessary.
Just last year, liberals experienced this dilemma when the New Jersey Supreme Court, in Lewis v. Harris, ruled that marriage's definition was a matter for society to decide, whilst ruling that similar institutions must exist for same-sex couples.
Liberals considered this as much a defeat as a victory because the court could not say, in good faith, that denying gay and lesbian couples access to the institution of marriage ran directly afoul to equal protection rights in New Jersey.
This battle, along with several others regarding reproductive rights, highlighted how liberals, despite their supposed efforts, have been unsuccessful at convincing legislatures across the nation to adopt policies that directly favor their platform.
Liberals should have been fighting in New Jersey to convince the public that marriage should be a civil right and worthy of their support rather than attempting to change society's laws without direct consent.
Courts have operated as a catalyst for social change in the past, but insofar as social movements followed as a corollary. However, movements today divorce themselves from this necessary element, not including the efforts of groups such as Fair Wisconsin, which made legitimate attempts to convince voters of their platform despite a lack of success.
By ignoring this element of changing public opinion, the liberal dependence upon the legal system has increased dramatically, and consequently, has led to situations such as this Supreme Court's judicial activism coming from the right.
Certainly, convincing a court of educated justices to pursue policy congruent with your platform is easier than convincing the masses, but this should be no excuse for liberal activists.
By pinning themselves in this corner, liberals have left themselves vulnerable to conservatively stacked courts. Rest assured, as long as Republicans cater to their extremist right-wing base, justices like Alito and Roberts will continue to be prime pickings for politicians.
Luckily, liberals have options, and they must now pursue those options as the Supreme Court has revealed its true colors. With the knowledge that the courts are, for the time being, not the allies they had been in the past, liberals must find new ways to promote these delicate issues.
The best way for liberals to avoid these new activist judges on the right is to simply avoid creating policy situations where they come into play.
Liberals need to convince legislatures and the public that their issues are correct. They need to engage in activism on the ground to convince the masses that their political views are in the public's best interest. Most of all, they simply need to avoid bringing political cases to the courts unless it is necessary, seeing as a justice's opinion on a subject only matters if cases are brought before him or her.
Liberals have an opportunity to choose different venues for their politics, and if Alito and Roberts continue to resemble the conservative activists they did this past term, liberals had better count them out of their policy equation.
Robert Phansalkar ([email protected]) is a first-year law student.
