Balkinization  

Saturday, March 06, 2004

JB

Conservatives Have Never Practiced Judicial Activism-- Not!

I recently criticized Jonah Goldberg for failing to come to terms with the long history of judicial activism by conservative Justices. Indeed, the New Deal revolution is in significant part a reaction to this long history, and when liberals innovated with constitutional doctrines in the second half of the twentieth century, it was conservatives who reminded them that judicial activism cuts both ways. They argued that if liberals of a previous generation didn't like conservative judicial activism in the Lochner period, contemporary liberals should not practice judicial activism even when it happened to favor liberal causes. This history is familiar to most students of constitutional law, and I was reminding Jonah Goldberg of this fact when he appeared to assert that judicial activism was a peculiarly liberal phenomenon.

Nevertheless, Stuart Buck has taken issue with my account of the long history of conservative judicial activism. My list of cases included, among other examples, Dred Scott v. Sanford, The Slaughterhouse Cases, The Civil Rights Cases, Pollock (The Income Tax Case), The Lochner Era police power decisions striking down labor laws, the Rehnquist Court's eleventh amendment decisions (Seminole Tribe, Alden v. Maine,), its decisions on section 5 power (Garrett and Kimel), and the post 1990 commercial speech decisions.

Stuart appears to agree with my inclusion of the eleventh amendment decisions and the section 5 decisions as examples of conservative judicial activism. He tries to define all of the others away as not being conservative decisions, because many conservatives *today* would not agree with the results in these cases.

This approach won't work. It's not responsive to my argument with Jonah. He claimed that judicial activism is a liberal phenomenon. I said that historically it was the product of conservative forces. So to see whether my historical claim is correct we have to look at what those people who were generally regarded in their own time as conservative believed to be the best interpretation of the Constitution. We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion. The same is true for a whole host of other liberal causes of the 1950's and 1960's which have become part of the consensus that contemporary liberals and conservatives now share.

Put in these terms Stuart's objections don't really hold much water. For example, Stuart seems to think that the Lochner decisions striking down labor laws were not conservative (and not activist). This view is untenable. Lochner and its associated decisions were the very essence of what was then called laissez-faire conservative constitutionalism. The entire history of the progressive reaction to Lochner which led to the revolution of 1937 understood those opinions to be paradigmatic examples of conservative judicial activism.

Or take Slaughterhouse. It is true that many conservatives and libertarians today think Slaughterhouse was incorrect-- as do I, by the way. But in 1873, the position taken by Justice Miller was the relatively conservative position. It was the position of Northern Democrats and conservatives in the Republican Party who wanted to deny that the Civil War had significantly changed the balance of power between the states and the federal government. Stuart seems confused by the fact that the Court upheld challenged economic regulation in that case. But that's not what makes the result conservative. What makes it conservative is the fear that the national government would be able to use its new powers under the 14th amendment to intrude on the police powers of the states and take over regulation of contract and property rights. (By the end of the nineteenth century, a new generation of conservatives arises with a very different agenda and very different concerns: They want to protect railroads and other business enterprises from regulation by states. This gives rise to the police power jurisprudence of the Lochner era, which reaches results closer to the dissents in Slaugtherhouse. There is no contradiction in recognizing that Justices in both generations were taking conservative stands; it is simply that the imperatives of conservatism changed in the Gilded Era).

The Civil Rights Cases, which struck down the Civil Rights Act of 1875, also reflect the judicial activism of the Supreme Court immediately following Reconstruction. They reflected the conservative compromise of 1877 which denied that Congress could use its powers to protect black civil rights.

The claim that either Miller's position in Slaughterhouse or Bradley's opinion in the Civil Rights Cases was the relatively *progressive* position during this period cannot seriously be maintained. These were pro-state's rights positions which restricted Congressional power to protect basic rights for blacks as well as for other citizens. As noted above, the focus of conservatives changed in the forty years between Slaugtherhouse and Lochner. But such changes are a fairly familiar feature of American political history.

Next consider Dred Scott. Taney held many positions that were, in their time, relatively progressive. But on slavery his views were conservative. (They were actually moderate conservative, because there were many more conservative defenders of the slaveocracy).
*Contemporary* conservatives surely abhor slavery. But there is no denying that the position in 1857 that Taney took was, in its time, the more conservative position. It certainly was not the progressive position! I'm not claiming that any conservative today thinks Dred Scott is correct. That's just silly. Rather, I offer Dred Scott as an example of my general point there is a long line of conservative activist decisions throughout American history. What we think of today as being activist is largely the work of those people who were identified in history as being conservatives in their own time. Liberal judicial activism is the product largely of the twentieth century. It is this historical blindness of Jonah Goldberg's-- as well as his failure to take seriously the recent cases of the Rehnquist Court on federalism and the Eleventh Amendment-- that undermines his attempt to blame judicial activism on liberals.

Now let me turn to the contemporary commercial speech cases. Stuart seems to be under the impression that the founding generation believed that the first amendment protected commercial speech, because he denounces the Roosevelt Court for stripping commercial speech of any protection in the Valentine case. I have to say that I would really like to see the evidence for his view that commercial speech was generally protected under the First Amendment until the New Deal. I've seen no proof of this in my own research.

Stuart is completely correct, however, that the liberal Justices supported the extension of commercial speech in 1976 and later cases, but by the 1990s the political valence of commercial speech had shifted. Liberals now are hesitant to extend the doctrine while conservatives are pushing for expansion. I have written about the reasons for this shift in my scholarship, but my point here is simply that the 1990's cases are pretty good examples of the Rehnquist Court's conservative judicial activism. They have no basis in the original understanding, and they are extensions of previous precedents that did not have to be extended.

As for Hans v. Louisiana and Ex Parte Young, Stuart wonders how they can both be conservative if they go in opposite directions. The answer is that the cases reflect different situations in which different oxes were being gored. Hans was decided in order to settle a post-Reconstruction dispute. Ex Parte Young arose many years later when the Lochner era Justices wanted to restrict progressive era legislation under the Due Process Clause. They were hamstrung by the Court's earlier decision, so they created an exception to get around what their predecessors had done. Likewise, the conservative decision in Slaughterhouse created a doctrinal difficulty for the later generation of conservatives who decided Lochner. Denied use of the Privileges or Immunities Clause, they turned to the Due Process Clause instead. That does not mean that both decisions could not have been conservative in their own time. It simply means that conservatism, like liberalism, is a moving target.



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