Karlan is very difficult to please. Roberts rescued Congress' handiwork from Congress' clumsy legislative craftsmanship, and still she complains because in doing so Roberts inevitably made “a thinly veiled critique of Congress.” Which Karlan seems to consider lese-majeste. “He conveyed disdain even as he upheld the Act,” thereby revealing the conservative justices' “premise of distrust” toward Congress. They are in good company: James Madison warned of Congress “everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” But prudent wariness about Congress is not tantamount to disdain for it or democracy.
Today's American public does not share Karlan's nostalgia for the Warren court, which she says was “optimistic about the possibility of politics.” Karlan subscribes to the progressive axiom that the cure for the ills of democracy is democracy, meaning elections. She sees little need for courts to protect against what the Founders' feared — liberty-threatening excesses of majorities. With a true progressive's impatience with the crux of the Constitution, the separation of powers, Karlan wants the court to consider Congress “a full partner in seeking to address the nation's pressing problems.” But often our institutions preserve liberty by being rivals rather than collaborators.
She abhors the conservative justices' “combination of institutional distrust -- the court is better at determining constitutional meaning — and substantive distrust — congressional power must be held in check.” Clearly she thinks Congress would be “better” at judging the limits of its own power. This fits her assumption that restraints on its power are presumptively anti-democratic.
She concludes: “For if the justices disdain us, how ought we to respond?” Her pronoun radiates democratic sentimentality — “us” conflates the citizenry and Congress. Today, just 18 percent of the citizenry approves of Congress' performance. What becomes of Karlan's argument when the conservative justices' distrust of Congress, for which she disdains them as anti-democratic, is exceeded by the public's distrust of Congress?
George Will's email address is email@example.com.
WASHINGTON POST WRITERS GROUP