Still Punching in the Court Fight

Conservative judicial activist Kenneth Blackwell takes to takes to the New York Sun today to argue that conservatives should not rest on their laurels after their recent string of 5-4 victories in the Supreme Court. I'm always impressed by how right-wing writers are able to strike such a consistently victimized, even apocalyptic, tone when they discuss the courts -- as though they are always, even when they win, just holding out on some judicial Masada, waiting for the activist liberal judges to overrun the last bastions of God-fearing, "originalist" jurisprudence.

Blackwell looks at Hein v. Freedom From Religion Foundation, in which the Court sharply limited taxpayer standing to sue over violations of the Establishment Clause. Panda's Thumb has a good explanation of the decision, which narrowed the scope of, but did not overturn, Flast v. Cohen -- the decision that affirmed such standing to begin with. Roberts's Court ruled that Flast does not apply in cases where Congress does not make a specific decision to use tax money to support religious institutions, but instead gives the funds to the executive branch in lump sums, leaving it to the administration to decide how to distribute the money. In fact, the decision was muddled, with Roberts claiming that he was not overturning Flast's precedent, while Scalia criticized Roberts for the hair-splitting. The efforts at nuance leave Blackwell cold, too: he argues that Hein "showed that this is no longer a liberal court, but neither is it a conservative one":

Conservatives should consider Hein both a victory and a missed opportunity. The fact that Flast was not expanded means what would have been a whole new line of attack by the Left against churches and ministries has been stopped. But the fact that Flast was not overturned means that all the current attacks will continue until such a time when one more conservative justice is confirmed to the Supreme Court.

Hein shows that conservatives have gotten halfway to the Court they desire, but are most definitely not there yet. Conservatives can celebrate, but they need to double their efforts in the 2008 elections.

Blackwell warns that liberals will be politically energized by the latest string of decisions, while conservatives might be tempted to let down their guard. Given the immense investments of time, resources, and spin that right-wing judicial activists like Blackwell have made in taking control of the courts, it's hardly surprising that he should insist on keeping up the fight. Is his op-ed a sign of the conservative rhetoric to come during the 2008 electoral cycle?