Going back to Jefferson and Madison, the idea behind separating church and state has been to prevent the state from forcing taxpayers to pay for other people’s religious practices. Fair enough. But in order to get religious conservatives to go along with that principle, secular liberal thinkers felt they had to give them something in return. And what do religious conservatives want? They want to be able to express their deepest religious convictions in the public sphere. They want to pray at town meetings, to place religious symbols in government buildings and on public lands, and, more generally, they want the state to acknowledge the importance—and perhaps also the truth—of their religious heritage.See, the legislature is where you go to make compromises with the other side. When you try to fight your battles in the courts, you're going to get decisions on one side or the other. That's the nature of the beast.
So here we have the makings of a compromise: Liberals would get a ban on state funding of religion, and conservatives would get state-sponsored religious recognition...
Except that the Roberts court, like the Rehnquist court before it, isn’t interested in taking this deal. In exchange for greater acceptance of religious practice and symbols in the public square, they have given up, well, nothing. In a series of 5–4 decisions, conservative majorities have rejected the ability of taxpayers to challenge state funding of religion...
If giving up your side in exchange for nothing looks like a shoddy compromise for liberals, what else might explain acceptance of Justice Kennedy’s new coercion principle[?]
The preference for waging war against conservative ideas in the courts is based on the hope that the battlefield itself is biased against conservatives. This follows from three ideas: 1) The judiciary must, in order to do their jobs, be highly educated. 2) The academy has largely been captured by liberals, which means educated people will have been taught to think by liberals most of the time. 3) As a consequence that re-enforces the bias, peer pressure among the highly educated is to conform to left-leaning ideas. Thus, the courts are much better ground for locating the real power of government than the legislature in which the general population gets most of the vote in selecting representatives. If the courts will just go along with stripping legislatures of the power to create laws that transgress against the principles of the left, it doesn't matter very much if you win or lose elections. When you win, you can pass new laws in line with your principles. When you lose, you can relax because the courts will throw out new laws that you'd oppose.
Unfortunately, there are some disadvantages to this approach. One of them is this one: when the court goes against you, it generally goes all the way. The other one is that politicizing the courts damages the legitimacy of two whole branches of government. The author really wants the courts to come up with political compromises here, in order to rewrite the laws in a way that would satisfy everyone. That's a legislative function. Should the courts take over the legislative function while also embracing the power to set aside legislatively-enacted laws that violate principles held by the educated elite who make up the judiciary, the court has effectively gelded the legislature. The legislature will not be respected as a co-equal branch of government if its power is completely co-opted by the courts.
By the same token, since Federal judges are not elected (and in this court serve lifetime terms) their decisions have no democratic legitimacy. When the legislature rewrites the law, it does so with the direct involvement of the people's representatives. Those representatives, should they defy the people's will, can be replaced at the next election. Unelected judges who cannot be replaced ought not to perform the legislative function in a republic that claims to draw its legitimacy from the will of the people.
So, grammercy for coming up with a viable compromise. I think people might go along with it. Take it to the legislatures, and at the state and local level as well. Make the argument. Point out that Jefferson and Madison are on your side. You might convince some people. Stop trying to get the courts to alter the playing field such that laws you don't like are forbidden to legislatures. Instead, play fairly and talk with the people with which you disagree instead of suing them.
Crazy idea, I know. But I'm pretty sure it's how the system was supposed to work.