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THE CASE AGAINST A CONSERVATIVE COURT

Supreme Court Justice Stephen Breyer performed an enormous service to our country last week. He clarified what is at stake in the coming fights over judicial nominations. He made clear why it is important to raise our national argument over court appointments above the level of slogans and campaign speeches.

In a series of lectures at Harvard University, Breyer offered a bold challenge to conservative judicial activism. While he was respectful of his colleagues, he put forward a clear alternative to the theories of conservative jurists such as Justice Antonin Scalia.

Conservative politicians, including President Bush, say they oppose judges who "legislate from the bench" and hope to fill the judiciary with "strict constructionists." That sounds good because we want democratically elected politicians, not judges, making the crucial decisions. Yet at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves.

That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.

This new conservatism is actually a very old conservatism. It marks a return to the time before the mid-1930s, when judges struck down all sorts of decent laws -- for example, regulating the number of hours people had to work without overtime pay -- on the claim that such statutes violated contract and property rights. The pre-New Deal judiciary that many conservatives are now trying to restore was the truly "imperial judiciary."

The new conservative judicial activism is a greater threat to our democracy than the prospect of some future court striking down the Roe v. Wade decision on abortion. If Roe is lost (and I doubt it will be), states will still be free to pass liberal abortion laws. But if extreme conservative judges limit the authority of Congress and state legislatures to pass environmental, civil rights, labor and consumer laws, our democracy will be less robust, less effective and less just.

Breyer's master concept is "active liberty." He argues that the point of our Constitution is democracy -- to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes."

The power of Breyer's idea of "active liberty" is that it links freedom to democracy. The point of our system of self-government is not simply to protect us from the wrongs government can commit but to give all of us the opportunity to shape what government does.

Breyer's lectures, which discussed key cases in detail, deserve broad attention because they lay down an intellectually coherent marker in the historically critical debates we are about to have over the president's judicial choices. Almost all of the journalism about judicial nominations focuses on filibusters, personal conflicts and partisan advantage. But this battle is so much more important than that.

Will judges invoke narrow, ideological readings of the Constitution to void progressive legislation? Or will they join Breyer in viewing the Constitution as a framework that "foresees democratically determined solutions, protective of the individual's basic liberties"? The fight over judges is not about politics, narrowly conceived. It is a struggle over what kind of democracy we will have. Breyer has helped us understand that.

Washington Post Writers Group

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