Jurisimprudence

On the Souter resignation, Yglesias writes:

Thinking more carefully about what I wrote last night it is worth emphasizing that neither David Souter nor any of the other current Supreme Court justices is really a liberal in the sense of a Thurgood Marshall or a William Douglas. Neither Souter nor Ginsburg nor Breyer nor Stevens shows any real indication in exploring the social and economic justice issues implicated in the constitution’s guarantees of equality. (emphasis mine)

Correct me if I'm wrong, but when did Thurgood Marshall or William Douglas ever conclude that the Constitution guarantees "economic justice"? Unless I'm mistaken, none of the "activist judges" of the past ventured to claim that the Constitution offered any sort of guarantee of economic equality.

Now, I have heard rumors that in some legal circles it has recently become fashionable to claim that the Constitution does in fact mandate some form of redistribution of wealth. But Yglesias implies that this claim is either consistent with the opinions of Justices Marshall and Douglas, or that it is the logical extension of their efforts toward social (racial, gender, and religious) equality. Neither of which is obviously true. Hopefully I've misinterpreted what Yglesias means here.

But regardless of whether I have, it's clear that Yglesias is assuming that true activist judges would necessarily advance legal opinion in the direction of (certain) politically liberal opinions of the day. He's wrong. There's a difference between judicial activism - i.e. interpreting the spirit, rather than the letter, of the Constitution - and political liberalism. In fact, Scalia could easily be called an "activist" judge. But independent of the "activist vs. strict-constructionist" debate, I have not been happy with the politicization of the Court that has resulted from the partisan jurisprudence of Scalia, Thomas, and Roberts, and I hope this trend reverses rather than continues.

(Also, the idea that the Constitution guarantees everyone economic well-being is retarded.)

My dad adds: "Using judges to enforce redistribution of wealth would utterly gut the American liberal movement." I think he's right.