While I believe most of Kaplan’s points are very well taken and quite practical, I have to disagree on a fundamental point— which may or may not impact on what Democrats should actually do if they win the Senate and the presidency.

When Kaplan avers that the Court should stay out of certain matters, presumably controversial ones, deferring to Congress or state legislatures instead, I believe he may be overlooking the importance of the Court as a referee for human and civil rights guaranteed by the Constitution.

One of the most important functions of the judiciary is guarding against tyranny of the majority. The rights of the marginalized are seldom championed by legislatures at any level. Majorities are, after all, often reticent to recognize the rights of minorities they don’t care for.

While our courts have a spotty record of protecting rights, they have unquestionably done a better job (over the long run) than Congress or the various state legislatures.

So I don’t believe that simply kicking issues back to elected representatives is a very appealing solution to contentious issues.

Of course I say that as a gay man, a marginalized person myself who understands that my elected representatives are not going to represent my interests very often. I think most marginalized people want the courts to play a more central role in American life, and for very good reason.

Which of course brings us back to the original problem. What the hell do we do now? At this point, Kaplan’s and my positions might converge a little bit.

Packing the courts, as a start, seems like a great idea. Term limits don’t seem like such a bad idea either. After that, I don’t know.