Today, New York Times op-ed columnist Ross Douthat weighs in on the "controversial power grabs" of the liberal Supreme Court, though he notes that "right-wingers, too, have grown accustomed to turning to the Court." The court overturns laws far too frequently, he says. "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." He figures that a "super-majority" can't reasonably be enabled for court decisions, so what about the next best thing: term limits to curb all this activism!

Tom Scocca: Let's pause for a moment before we turn to the very interesting and curious choice of the year 1954 as a punctuation point in Judicial Activism.

Choire Sicha: Oh boy.

Tom Scocca: And first ask simply whether any other things about the United States have changed in these time periods, besides the business of the Supreme Court. For instance, the number of state laws overturned. May I ask: at what various rates have state laws been passed? How many states have there been, at different points on this timeline? How populous have the states been? How many different forms has the commerce of the various states taken?

Choire Sicha: *starts Googling really hard*

Tom Scocca: I am going to guess that the switch from overturning one state law every two years to overturning 10 state laws a year might conceivably coincide with a twentyfold increase in the number of state laws being passed. But now let's consider the 1954 question. More Douthat:

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.

Tom Scocca: "Roe v. Wade leading the way" is an important locution. Was Roe v. Wade decided in 1954?

Choire Sicha: Um, no! That was in 1973!

Tom Scocca: This may be the single most important fact in understanding why and how conservatives–including Mr. Reasonable, Ross Douthat–talk about the Supreme Court. That span starting in 1954 included a lot of decisions. There was Brown v. the Board of Education of Topeka, Kansas. That one did happen in 1954.

Choire Sicha: ACTIVISM!

Tom Scocca: There was Loving v. Virginia. There was Miranda v. Arizona. There was Griswold v. Connecticut.

Choire Sicha: Oh boy.

Tom Scocca: There was, in short, a series of decisions that overruled state law to establish that segregation was illegal and that all Americans–whatever their race and regardless of whatever cruel backwater jurisdiction they may have been born into–were entitled to equal opportunity, free expression, civil liberties, privacy, and dignity.

Choire Sicha: All very bad things!

Tom Scocca: Terrible. A white person could marry a black person (provided they were of opposite sexes) and could then use contraception in the home (as needed, since they were of opposite sexes)! What was America coming to? And both of them could vote!

Tom Scocca: The people on the losing side of these decisions–the segregationists, the anti-miscegenationists, the people who favored cops beating confessions out of people, the people who wanted to outlaw nonprocreative sex among their married neighbors–became the base of the radical-evangelical arm of the Republican party. Yes, at the time, some of them were staunch registered Democrats, which is a popular talking point among certain shouters. They switched over long ago.

Choire Sicha: Oh my.

Tom Scocca: Nixon and Reagan brought them over.

Choire Sicha: From the work of the Harvard Law School guy that Douthat quotes, Jed Shugerman: "Over the past eight years, the Rehnquist Court has waged an activist revolution that is unprecedented both in scope and in conflict." That Rehnquist Court and its activism!

Tom Scocca: Well, that is not exactly the pox-on-both-houses message that our Reasonable Conservative is giving us, is it? Anyway, but so: 1954. So what happened was, at the tail end of this series of humiliating and richly deserved defeats for the bigoted American right wing, the Supreme Court handed down another upsetting decision, about abortion.

Choire Sicha: Twenty years later.

Tom Scocca: And this one was seen less as a ringing blow for freedom. This one, people could object to in polite company, and could keep on objecting. Because Americans oppose abortion in principle, though they support it in practice. And so abortion became the defining moral issue for the right. Because on the other moral issues, they were wrong and defeated. But the pure, perfect innocence of the fetuses was the innocence they themselves wished to recover. The world was now divided between baby-killing monsters and people who loved babies. And if they fought hard enough for the babies they loved, they could get back on the right side of history. This is why Ross Douthat describes Roe v. Wade as "leading the way."

Choire Sicha: R. v. W. is the perfect rally-er.

Tom Scocca: But to what are you rallying? If you want to roll back the Roe v. Wade-style judicial activism by pointing your time machine back to 1954, then many more things than the unborn are in play.

Choire Sicha: With regard to the growth of laws over the years, from The Heritage Foundation:

So for the past twenty-five years, a period over which the growth of the federal criminal law has come under increasing scrutiny, Congress has been creating over 500 new crimes per decade. That pace is not steady from year to year, however; the data indicate that Congress creates more criminal offenses in election years.

Tom Scocca: Imagine that!

Choire Sicha: "More than 40% of the federal provisions enacted since the Civil War have been enacted since 1970," says The Heritage Foundation.

Tom Scocca: So perhaps the Supreme Court is being too lazy about striking them down.