High Court Caricature

That's the title of the fabulous Ruth Marcus' must-read column in today's Washington Post.  LINK  Here's the beginning.

The court stepped in, summarily overturning laws in 16 states. Tossing aside evidence that the constitutional provision was never intended to apply to the situation at hand, the court instead looked to what it grandly described as the "broader, organic purpose of a constitutional amendment."

Another example of "unelected judges" demonstrating "little regard for the authority of . . . the states" and "even less interest in the will of the people"? Of judges, unconstrained by constitutional text or history, turning to " 'emanations' . . . and other airy constructs the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning"?

The case is Loving v. Virginia, the 1967 ruling in which a unanimous Supreme Court found that state laws prohibiting interracial marriage violated the constitutional guarantee of equal protection. The decision has been on my mind recently because of the death this month of Mildred Loving, the African American woman who dared to marry a white man and try to live with him in Virginia. Last week, I happened to listen to C-SPAN's riveting rebroadcast of the oral argument.

A few days before that program, John McCain delivered the tired broadside, quoted above, against activist judges. As my car radio crackled with the tinny voice of Virginia's lawyer urging the court not to usurp the state's "legitimate legislative objective of preventing the sociological and psychological evils which attend interracial marriages," I could not help but recall McCain's critique.

I'm not suggesting for a second that the presumptive Republican nominee opposes interracial marriage or disagrees with the ruling. My point, rather, is that the debate over the role of the judiciary deserves a far more nuanced approach than McCain's caricature of "the common and systematic abuse of our federal courts by the people we entrust with judicial power."