King of Zembla: Brave Old World

The September Harper's contains, among other treats, a long and fascinating article by Cass R. Sunstein, "Fighting for the Supreme Court: How Right-Wing Judges Are Transforming the Constitution." (To read the entire text you will have to visit your newsstand and purchase a copy, because the article is not, alas, online.) Sunstein charts the ascendency of "movement judges," who disdain traditional conservative principles such as judicial restraint and respect for the political will of the people in favor of an explicitly retro political agenda. These new activists, who claim to be committed to interpreting the Constitution according to the views of those who ratified the document, describe themselves as "originalists." Sunstein suggests a more accurate term: judicial fundamentalists.

Fundamentalists are entirely aware that current constitutional law does not reflect their own approach. They know that for many decades the Court has not been willing to freeze the Constitution in the mold of the eighteenth and nineteenth centuries. For this reason fundamentalists have radical inclinations; they seek to make large-scale changes in constitutional law. Some fundamentalists, like Justice Scalia, believe in respecting precedent and hence do not want to make all these changes at once; but they hope to make them sooner rather than later. Other fundamentalists, including Justice Clarence Thomas, are entirely willing to abandon precedent in order to return to the original understanding.

What sort of success have the movement activists enjoyed so far?