More Countermobilization!

Jeffrey Rosen’s article about the “Constitution in Exile” movement is good (more on that later, if only to make fun of Richard Epstein), but this being Rosen he concludes with yet another statement that judicial victories won in the courts always produce a much harsher backlash than those won through legislatures. As I’ve said before, there’s nothing wrong with this claim except that there’s no plausible theory and no evidence to support it. (Of course, striking down the New Deal would certainly produce a backlash, but that’s because it would be, er, unpopular. Congress would also face a major backlash were it to do the same, as indeed the Bush Administration is now finding out.)

I’m rather surprised, however, that Rosen hasn’t discussed the New York Court of Appeals, which last year struck down New York state’s death penalty statute, requiring procedural changes if one was to be reinstated. The court intervening in a divisive social issue–it seems like a relevant case. In response to the court’s rabid judicial activism, in light of the undoubtedly massive public backlash the New York legislature responded by…repealing the statute altogether. Boy, does the ACLU have egg on its face now! When will these clueless litigators ever learn not to be sucked in by the “flypaper court”…