A quote for your consideration:
“The Supreme Court is now dominated by a highly politicized … majority intent on working its will, even if that means ignoring precendents and the wishes of the elected branches of the government.”
A diatribe against abortion? Gay marriage? Deference to criminal rights?
No, it’s E.J. Dionne denouncing the recent recent SC decision permitting the free use of corporate funds to finance shadow political campaigns. Even as he denounces the conservative justices for activism and for creating “legislation” from the bench, as well as the general conservative movement for a “double standard without apology” after decades of Right-wing arguments encouraging judicial restraint and deference to legislatures, he fails to note the double-standard that he (and others on the Left) are employing in their demands for judicial modesty.
All of which begs an interesting question: what are we to make of the constant well-worked political arguments based upon principle that prove to be so much window dressing when a different ox is being gored?
Tocqueville argued that in democracies, all political arguments become judicial arguments. And judicial arguments – particularly in the American context – demand to be framed in terms of the language of rights, that is, sweeping and universal applications of right, admitting of few if any exceptions (note that defenders of the gun rights are just as prone to argue against exceptions as defenders of abortion rights. Rights language is, in a way, totalitarian). Liberal democracies – based on the principle of equality – bridle against exceptions or judicious exceptions, that old form of reasoning known as “casuistry” that considers each case in its unique particularity. Such forms of judgment prove to offensive to our sense of equal treatment, and we reject the presence of boundaries or difference.
Yet, such moments as E.J. Dionne’s argument from principle today reveals that, more often than not, our principled arguments actually shroud particular and partisan interests. The language of rights, and the judicialization of politics, totalize our partial claims. It’s a most pernicious of outcomes, and one we live with daily (does anyone really think that “conservatives” are happy with the Court’s corporate finance decision on First Amendment grounds? Might it not have something to do with the assumption that such funding stands to more greatly benefit candidates in the corporation-friendly Republican party?). That is why we should consider and take very seriously Ross Douthat’s column in today’s New York Times, in which he defends a more local and less “universal” approach to politics (speaking specifically to the issue of sex education, but an analysis that could be more widely applied). By “nationalizing” such decisions, partisans are forced to make what should be more local and personal claims in universalists terms. Both parties are forced into the totalizing language of contemporary politics, and as a result, the most “general” player on the national stage – the Federal government – always wins. While it’s hardly a winning campaign slogan, what’s needed is a true and defensible New Casuistry.