Let’s get a few facts out of the way first. Conservatives love to bitch and moan about “big government,” “government interference,” “activist judges,” and “higher taxes”. All code words that really mean, “I’m selfish, I’m a child, I don’t want anyone telling me what to do.” Understandable, perhaps, but a thought-process that has no place in the good governance of a modern-day society.

So, ”big government.” Yes, government has grown. So has the nature and population of the country. Conservatives love capitalism and “free markets”, so let’s look at it from their perspective: When a company grows, it adds layers of management and rules and regulations to help it compete and to help it continue to grow. If it didn’t, it would quickly fall apart, and die. We’ve seen what deregulation of our banking system did to the world economy. We saw what lack of regulation did to our banking system in the 1920s and 30s. We saw what energy deregulation did to California in 2000 – 2001. Suffice it to say, as systems and populations grow, so does the need to regulate them. Anyone who listens to Conservatives on this point is just plain inviting problems of the past to return.

NOW, Mr. Douthat’s column.

“According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century.”

OK. Well, for one, there are more states now than there were before the Civil War, or than there were in the late 1800’s. In fact, the last state admitted to the Union was Hawaii, on August 21, 1959. In 1861, Kansas was the last state admitted to the Union “pre-Civil War”. Since then, there have been sixteen additional states admitted to the Union. It stands to reason that more states mean more state laws subject to being overturned by the Supreme Court. Also, as America has become increasingly political and lawmakers subject to ever-increasing popular opinion and scrutiny, it stands to reason they would make more (bad) laws to appease their constituents, thus the need for the Supreme Court to examine and probably overturn more laws. Simple math and logic.

“Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80.”

Same response. More laws are being crafted, by more lawmakers trying to keep their jobs. If the Supreme Court weren’t a lifetime appointment, those jurors would be subject to the same public opinions as the other two co-equal (Yes, Mr. Douthat, co-equal) branches of government.

“In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.”

The vote of the court, 5-4 , or 6-3, or whatever the margin, has more to do with the makeup of the bench, which is dependent upon Executive and Legislative branch decisions, than by the cases it examines. But as our society becomes more complex, so do rulings on these matters. Were most cases decided by wide margins, one would have to wonder why those cases reached the Court in the first place.

“The right tends to blame the left for the Supreme Court’s expanded ambit, and not unjustly. The modern Court’s most enduringly controversial power grabs — with Roe v. Wade leading the way — were usually the work of liberal justices, and even the more modest liberal theories of jurisprudence tend to depict the Justices as soldiers in the progressive cause, constrained primarily by what the political climate allows them to get away with.”

In reality, our Constitution is hailed as a tool of liberty that has been crafted to allow increasingly wider interpretations. Were it not, slavery would still exist, inter-racial marriage would still be illegal, and women would not be able to vote. As society grows and changes, our laws must also, to reflect the will of the people coupled with inherent rights and responsibilities that come with civilization. Surely Mr. Douthat, you understand that?

“There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation. To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds — versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.”

“Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.”

As I stated earlier, the Constitution calls for three co-equal branches of government. There is NO reason for the Judicial branch to be “reined in”. All Conservatives want in a “supermajority rule” is to stop the march of progress. That cannot and will not happen. Given the growing disgust by Conservatives of government in general, it’s surprising a Conservative would want to tie the hands of the means to overturn decisions of government. Term limits would be equally disasterous. Why would an esteemed judge of, say, age 50 want a job for ten or fifteen years? What would they do at age 60 or age 65? We would loose great judicial candidates.

A strong Judicial Branch is essential to a strong democracy. To weaken it would be to weaken America. Surely Mr. Douthat, you understand that?