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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Sunday, July 08, 2007 ::
    Today's dose of Greenhouse Gas is entitled "On Wrong Side of 5 to 4, Liberals Talk Tactics."
    Political activists within the liberal camp came up with a plan quickly enough: to “take back the court,” in the words of Norman Lear, a founder of People for the American Way, which sent 400,000 e-mail messages last week as part of a campaign to make the court a central issue in the 2008 Senate and presidential elections.
    That would be just great, provided conservatives do the same thing. As a help, Ms. Greenhouse reminds us of the heady era when plans such as construing the Equal Protection Clause to require socialism filled the most elite law reviews:
    As the defensive effort became all-consuming, the energy and vision that had animated liberal legal scholarship shriveled to the point that it has been decades since anyone has returned to the ideas that came close to fruition on the Supreme Court of the 1960s: enshrining equal education as a fundamental right or making the alleviation of poverty a constitutional imperative sound like left-over fantasies from a bygone age.
    "Equal education as a fundamental right" -- any bids on what that would do to private education and home schooling, esp. with Cass Sunstein now arguing that secular authorities may have authority to ban "sex discrimination" in religious institutions? (ht: NRO Phi Beta Cons blog)

    And speaking of Prof. Sunstein, Ms. Greenhouse shows herself more easily surprised that one suspects she really is:
    The tension is apparent even in those liberals who sing the praises of judicial “minimalism,” as Cass R. Sunstein of the University of Chicago Law School does. In a provocative posting this spring on The New Republic’s Web site, he deplored “the absence of anything like a heroic vision on the court’s left,” a surprising complaint given his well-known advocacy of judges deciding cases as narrowly as possible.
    That CS should advocate minimalism when the Court is (supposedly) conservative, while also advocating "a heroic vision on the court's left" -- big surprise there, yeah. My heart's still going pitti-pat, I'm so surprised.

    :: David M. Wagner 1:44 PM [+] ::

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