Brian Tamanaha has an interesting post on judicial objectivity/activism, in which he quotes at some length from a 1948 law review article by George Braden. One of Braden's comments jumped out at me:
Every constitutional question involves a weighing of competing values. Some of these values are held by virtually everyone, others by fewer people. Supreme Court justices likewise hold values. The more widely held are the values in society, the more likely the Supreme Court will hold them; the more controversial the values, the more likely the Supreme Court is to divide over them.
Assume arguendo Braden's right that making constitutional law requires weighing values, although I don't really believe that (see my Groping Towards a Conservative Theory of Judicial Review. My point here is that Braden's wrong about it being more likely that SCOTUS members will hold those values that are most widely held in society. Instead, I would argue, that SCOTUS members are most likely to hold the values of social elites.
And so we come to Christopher Lasch, who wrote that:
[T]he new elites, the professional classes in particular, regard the masses with mingled scorn and apprehension. In the United States, ?Middle America??a term that has both geographical and social implications?has come to symbolize everything that stands in the way of progress: ?family values,? mindless patriotism, religious fundamentalism, racism, homophobia, retrograde views of women. (The Revolt of the Elites: And the Betrayal of Democracy at 28.)
Given the prevalence of religious faith in America, Lasch's comments about elite attitudes toward religion are particularly telling:
A skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. ... The elites? attitude to religion ranges from indifference to active hostility. (Id. at 215.)
Not surprisingly, when it comes to the culture wars, for example, the SCOTUS swing votes (e.g., O'Connor and Kennedy) have consistently come down on the same side as elite opinion. To be sure, the Greenhouse Effect plays a role, but the cultural divide between ordinary Americans and SCOTUS members may be even more important.
