Commentary Magazine


Division of Labor

To the Editor:

Daniel Casseœs view that federal court decisions in areas such as busing, affirmative action, prisons, abortion, and separation of church and state freed Congress in the late 70′s to do mischief elsewhere [“A Party of One: Clinton and the Democrats,” July] is, to put it bluntly, off the wall.

First, except for affirmative action, congressional authority in these areas is severely limited and largely directed to proposing amendments to the Constitution. More importantly, the genesis of the important decisions covering these matters came in the late 60′s and the important cases were decided by the Supreme Court in the early 70′s under Chief Justice Warren Burger. Roe v. Wade (abortion) was decided in 1973 and Swann v. Charlotte-Mechlenburg Board of Education (school busing) in 1971. . . .

Avern Cohn
Detroit, Michigan

_____________

 

Daniel Casse writes:

Of course Avern Cohn is correct that the judicial activism of the Supreme Court began well before the 1970′s. But it hardly stopped with the Roe and Swann cases. The point I tried to make in my article is that liberal Democrats who came to Congress after 1974 recognized that the pursuit of issues once central to their political agenda—the promotion of racial preferences, the reform of abortion laws, and so on—had evolved into an exclusively judicial strategy.

With the courts helping to advance this more-established part of the liberal social agenda, the post-Watergate Democrats in Congress broadened their legislative agenda to include new environmental and business regulation, expansion of entitlement programs, intensive oversight of foreign policy, and, under President Carter, the appointment of federal judges who would protect and enhance the activist rulings of the Warren and Burger courts. It was a division of labor that undoubtedly delighted the Democratic party.

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