The American counterculture was once defined by hippies marching on the streets of San Francisco or taking over buildings at Berkeley. This overlapped during the 1960s with the Supreme Court of Earl Warren, the popular benchmark of an activist judiciary.
That was then. Now, this group is older, whiter, and much less likely to have voted for Eugene McCarthy.
In Murrieta, California, scores of conservative protesters block buses filled with immigrants from arriving in the city. In Nevada, hundreds rally to bolster rancher Cliven Bundy's fight against what they see as improper government intrusion. These are to some extent offshoots of a broader, fading movement -- the tea party -- which saw protests at statehouses, over phone lines, and at the Capitol as a critical form of engagement.
Meanwhile, in Washington, the Supreme Court rejects forcing employers to pay for birth control against their religious beliefs. It rolls back the Voting Rights Act and campaign finance laws. House Speaker John Boehner goes so far as to ask the courts to intervene against President Obama's executive actions -- shortly before the court rejected one example of Obama acting outside of the constraints of the legislature. In Mississippi, a conservative politician hopes the courts will overturn the results of an election.
In 2012, the conservative site Townhall.com ran an essay arguing that conservatives should see Saul Alinsky's famous how-to guide Rules for Radicals not as a reason to mock their opponents, but as a useful guide for their own protest. Listing Alinsky's 13 rules for shifting the balance of power between the Haves and Have-Nots (which Alinsky framed in economic terms), the site's John Hawkins suggested that conservatives "learn from what he wrote and give the Left a taste of its own medicine."
They were already doing so. The Occupy movement -- an effort by the economic Have-Nots to put pressure on the Haves -- was clearly inspired by the radicalism of the 1960s. But so were the tea party protests that were happening at about the same time. This wasn't a cohesive, deliberate application of a national strategy, but it was (and is) driven by the same spirit. The Haves that the tea party Have-Nots are protesting aren't the wealthy, or aren't only the wealthy. As in Alinsky's writing, the Haves are the institutions of power: the presidency and the government. Conservative Americans -- looking in from the outside after eight years and, we have to add, reeling from the slow recovery from the recession -- were suddenly the Have-Nots. They are the new radicals.
The idea of judicial activism, meanwhile, has always been as much of a cudgel as a critique. When Newt Gingrich in late 2011 threatened to arrest judges who insisted that students not include a benediction in their high school graduation, he was tapping into a conservative narrative on behalf of his stumbling presidential campaign, as much as trying to make legal point. When Elena Kagan's nomination to the Supreme Court came before Senate Republicans, some worried that her activism would be in defense of government, instead of the general presentation of activist judges as undermining the will of elected legislatures. (Incidentally, Warren was not a high-water mark for anti-legislative activism. Late last year, the New York Times evaluated the relative activism of the past five Supreme Courts, finding that Warren's court trailed successors' on two metrics.)
Regardless, conservative appeals for judiciary intervention are a dramatic shift from the idea of judges who do too much. This is certainly a function of the composition of the court, which skews conservative and has demonstrated a willingness to consider conservative issues. And it's also a function of having a gridlocked Congress and a Democratic president who much of the conservative base disapproves of strongly. In the wake of the Hobby Lobby decision, the term "activist judges" has been used -- by opponents of the decision.
There's a reason that President Nixon's "Silent Majority" -- a group that overlaps with today's conservatives -- stayed silent: They were the ones in power. The Haves. Feeling threatened by immigration and establishment politics and President Obama, today that same group sees itself as the counterculture. And in some ways -- shifting demographics, the occupant of the White House -- it's right.