Progressives are shell-shocked. . . . When the shock wears off, however, progressives will have to ask themselves whether they should ever have expected (or sought) so much from the judiciary. And they should think about what they can realistically expect in the future. The progressive approach to looking to the judiciary for social and political salvation has always run against the grain of history. And if progressives are going to advance their agenda in court going forward, they probably will need a significantly different strategy and focus.

Forget about the Court is Lazarus' solution. And perhaps he is right. But it should not be so and it is not a complete solution. It is clear that Lazarus does not conceive of the possibility that a Roberts' Court will be anti-majoritarian in its drive to impose it radical reactionary views. for example Lazarus writes:

The 19-year period from 1954 (when the court decided Brown v. Board of Education) through 1973 (when it ruled on Roe v. Wade) stands out as a progressive aberration -- the only time since the 1820s that the court stood at the forefront of legal and political reform. In this sense, the past 33 years of accelerating rightward drift have been a return to conservative normalcy. Why did we see the court otherwise? Because we either experienced the Warren era court or became enraptured with its description in our civics books.

. . . This forbidding reality all but forecloses any additional advancement in the judiciary on the two broad progressive legal planks of the modern era. The first of these is what could fairly be called the "equality agenda" -- the battle to redeem the Constitution's promise of equality from the grip of Jim Crow and a history of discrimination against women and minorities.

To a significant degree, this agenda has become a victim of its own success. Led in no small part by the court, the nation has placed itself indelibly on record as aspiring to a society in which people of both sexes and various races, ethnicities and religious groups receive equal treatment under law. But to the extent that we are not yet one nation -- one people -- all equal in rights and opportunities, progressives will now have to turn to forums other than the court for further progress.

(Emphasis supplied.) What type of forums does Lazarus suggest? Surely not school boards, such as those in Seattle and Louisville, whose plans to enact a progressive agenda on integration were stymied by the reactionary, judicially activist Roberts Court. What does Lazarus suggest progressives do about that? And there can be no doubt that the Roberts Court will extend this approach to all facets of public policy - a new Lochner-like era seems imminently possible.

The problem is this -Lazarus, like many legal academics, do not like the fact that the Supreme Court is, at its heart, a political institution. Lazarus recognized this, as this piece about the Roberts confirmation fight demonstrates. But he just plain does not like it. There he wrote:

As I have argued many times, including in an earlier column for this site, this means that Senate Democrats will be seeking to defeat Roberts on very weak legal grounds. Having serious doubts about the legal underpinnings for Roe v. Wade is respectable and responsible, not extreme or bizarre. Partisan liberals may consider Roe a sacred cow, but constitutional scholars simply do not. Senate Republicans may even point to liberal and moderate critiques of Roe if Roberts answers equivocally about - or, more likely, refuses to discuss - the decision.

In the end, then the Democrats will be waging their fight on political, not legal, grounds -- that is, based not on the soundness of their own jurisprudence, but on the polls, which say that roughly 70% of Americans support a woman's right to choose.

. . .

The Roberts Hearings: Probably Unenlightening, and One-Note

The upshot of all this is that we are pretty unlikely to reap one genuine benefit of the Bork hearings: The questions and answers between the Senators and Bork treated the nation to an open and wide-ranging debate about the meaning of our Constitution and the role of judges in interpreting it.

Thanks to Bork's entrenched views and his unusually frank responses, the public got an extraordinary education about the divisions in our legal and political culture -- regarding not just the issue of privacy, but also those relating to race, states' rights, religion, free speech and others.

There is, sadly, little risk of such enlightenment this time around. Most likely, Roberts will be as bland and reasonable as possible, while the liberals push and probe, but end up with insufficient information to penetrate Roberts's attractive veneer. In short, it will be all about "not-Bork."

Lazarus seems geuninely disappointed that the debate about the Supreme Court will not be high minded Constitutional arguments about the Constitutional soundness of Roe and instead will be sullied by "mere" politics. Here is an academic who seems not to care a whit about the real world consequences of what the Supreme Court does. These are our "liberal experts." Detached and "serious."

The funny thing is their view of the role of the Supreme Court and the process of picking Supreme Court justices is utterly anti-Constitutional. The idea of the Senate not confirming a Justice on the basis of ideology is anethema for such as Lazarus.

Advice and consent appears to mean "rubber stamp" to our "ivory tower." It springs from a detachment and disconnect we can ill afford in these drastic times.

In his famous "I Have A Dream" speech, Martin Luther King said:

We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.

The academic Broders never seem to share that sense of urgency on any issue. Their detachment is palpable. And invidious, if inadvertently so.