Who Can Really Say?

He Wasn't Named Learned For Nothing

Eugene Volokh has a great post today, linking to an article in The Nation by Burt Neuborne, a former Legal Director of the ACLU. Neuborne:

Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic--which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance.

Volokh:

Winning in court is generally good -- but there's no substitute for winning elections, and for persuading the public more broadly. Any victory that's only a victory in court is not likely to last long, at least on the important issues that are likely to remain in people's minds. Neuborne is right to remind his side about this; I hope people on my side (generally libertarians and, on many issues, conservatives) remember this, too.

To which I wish I could add a great quote from Learned Hand, one of the esteemed judges of the first half of the last century -- it's in one of my law school casebooks, stored in a box deep in the bowels of what most would call a basement and which I'm starting to think of as a crypt. Hand essentially said, if I've got this right, that societies which call upon upon judges to decide issues it has not decided for itself are in for a bad time. Hand has been dead for over forty years, but he wasn't named Learned for nothing.

[Linked to the Beltway Traffic Jam.]

Posted by Peter at April 11, 2005 06:40 PM