Right-wing activists shouldn't fool themselves that there's a close fit between their own political commitments and the Constitution

In the final analysis, its all about hermeneutics.

By Cass R. Sunstein

Ever since the election of President Ronald Reagan, American conservatives have been sharply divided about what was wrong with the liberal activism of the Earl Warren court era of the 1950s and '60s. The division has led to two radically different views about the proper role of the U.S. Supreme Court in American life.

The first view reflects the principled conservatism represented by Justice Felix Frankfurter, the great conservative on the Warren court. Frankfurter thought that the Supreme Court should respect the decisions of elected officials. He despised the court's willingness to enter what he called the "political thicket."

Frankfurter was a judicial minimalist, in the sense that he wanted the court to proceed in small, incremental steps. To minimalists, Roe vs. Wade symbolizes judicial hubris; they do not want to create new rights or to expand on the right to privacy. But minimalists disapprove of right-wing judicial activism no less than they disapprove of its left-wing sibling. They are reluctant to use the Constitution to strike down affirmative action programs, gun control laws, environmental regulation or campaign finance reform. They think that questions of this kind should be resolved democratically, not by the judiciary.

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