David von Drehle:
This guy is obviously a liberal, but he is one who understands the mistake liberals have made in ignoring the political process and instead looking for judicial dictators.
For many Democrats, the worst thing about the election result is the prospect of President Bush's appointing a new generation of conservative justices to the Supreme Court. But in the long run, a rightward shift in America's courts could be one of the best things to happen to liberalism in years.
Half a century after the triumph of Brown v. Board of Education, the landmark desegregation case, reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives. The recent battle over gay marriage, in courts and at the ballot box, demonstrates that liberals today are more adept at persuading like-minded judges than they are at persuading undecided voters. Over the past 40 years, while progressives were winning dozens of controversial court cases on issues ranging from abortion to school prayer, the Democratic Party failed nine times out of 10 to win a majority of the votes for president.
Over time, though, voters matter -- just as they mattered on Nov. 2, when liberalism took another beating -- and gay marriage was rejected in 11 out of 11 state elections.
Whatever you feel about the rights that have been gained through the courts, it is easy to see that dependence on judges has damaged the progressive movement and its causes. Liberals "became lazy at some point," says Marshall Wittmann, a senior fellow at the Hudson Institute who has worked for groups as diverse as the Christian Coalition and the Democratic Leadership Council. "By relying on the judiciary, their political muscles have atrophied."
At the same time, the liberal focus on courtrooms has strengthened the conservative movement. Nothing riles up social conservatives like a stirring denunciation of the so-called "activist" courts. From Richard Nixon to Ronald Reagan to the present day, GOP candidates have invited voters to send a message to those men and women in robes who order broad cultural change without the consent of the governed.
And it works: In that same 40-year period, Republicans have won five majority-vote presidential victories to the Democrats' paltry one.