Don't get me wrong: Roe and other hot-button social issues matter a great deal. But the power to destroy the ICC has much more far-reaching consequences. So it's nice to see a contributor on the NYT editorial page get it:
In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional.
Unfortunately, this is an issue which doesn't capture the public imagination, or even the interest of most liberal activist groups. I'm not sure there's much we can do, except perhaps oppose the worst of these "Constitution-in-Exile" type judges, and expose them for what they are:
Every time someone like this comes up for a nomination, we need to say that they want to make Social Security illegal. Not get rid of it - make it illegal. They want to make the minimum wage illegal. They want to make clean water laws illegal. This is not a mis-statement or exaggeration of their position. This is exactly what they propose.
I'm going to conclude with a final thought. The editorial - which I strongly encourage you to read - leaves out some of the backstory to the "revolution of 1937." FDR and the Congress had repeatedly passed all types of legislation to combat the Depression, as part of the New Deal. The Supreme Court struck these laws down again and again.
Finally, in his second term, Roosevelt was able to appoint new justices with a modern view of Congressional power. From 1937 on, the court upheld all manner of New Deal legislation, with Wickard v. Filburn being the high-water mark of the ICC power.
My constitutional law professor asked whether the post-1937 court was "better" than the pre-1937 court - not on political grounds, but on principle. He answered his own question by saying "Yes." His reason was simple: The post-1937 court wasn't requiring Congress to act - it didn't say that various New Deal legislation was obligatory. Rather, it allowed the democratically elected Congress and President to legislate over the economy as they saw fit.
The pre-1937 court, by contrast, imposed its own judgment on what was appropriate for the economy, in an enormous range of cases. So do we want an unelected and unaccountable Supreme Court which decides national economic policy, or do we want to reserve that power to our elected represenatives in Congress?
The answer to me couldn't be more clear. It's also clear to movement conservatives and the Federalist Society. Unfortunately, they've reached the exact opposite conclusion, and we must do everything in our power to stop them.
Update [2004-12-14 16:57:38 by DavidNYC]: DreamofPeace reminds us of what the pre-1937 world looked like.