Balkinization  

Friday, September 24, 2004

Republican Judicial Activism

Mark Graber

Just got my copy of Thomas M. Keck, The Most Activist Supreme Court in History (University of Chicago Press). Bush v. Gore was not an aberration. The Rehnquist Court has declared far more federal laws unconstitutional than any other tribunal in American history, with Scalia and Thomas being the leading culprits. Rehnquist Court justices are also competitive with the Warren Court when declaring state laws unconstitutional. The federal and state practices declared unconstitutional include campaign finance reform, cigarette and liquor advertising, federal laws banning rape, the Religious Freedom Restoration Act, sections of the Americans with Disabilities Act (Scalia and Thomas want to get rid of a bigger chunk), affirmative action, laws protecting the environment, laws banning discrimination against homosexuals, and laws preventing the establishment of majority black Congressional districts. Professor Keck does a nice job documenting all of this, demonstrating how contemporary judicial activism is rooted in opposition to liberalism, not in any sense of judicial restraint.

What is wrong with this picture. We might note that the Rehnquist Court consistently uses judicial power to support the "haves" of American society. The Warren Court decides Clarence Gideon has a right to an attorney. The Rehnquist Court decides that states cannot prevent Philip Morris from appealing to children. The Warren Court decides the federal government can outlaw literacy tests. The Rehnquist Court declares that Congress cannot enforce the equal protection clause by making violence against women a federal crime.

From another perspective, little is wrong with this picture. Many of us believe that an incumbent administration is entitled to appoint justices committed to pursuing its constitutional vision. You lose too many elections. You lose the court. My guys should be free to staff the court with progressive justices. I have no problem with Clinton (and Kerry) appointing justices who will deny state power to criminalize abortion and sodomy. You win enough elections. You get to control the judiciary. This is not crass partisanship. While I believe that Bush and company believe fundamental rights are matters to be politically trifled with, I have many intelligent friends who will articulately defend Rehnquist Court policymaking. Sincerity is not the issue.

All I want is that defense to be public. As Keck suggests, a big difference exists between Kerry and Bush. Kerry is honest about his judicial commitments and constitutional vision. The Democratic party is committed to keeping abortion legal, to allowing some forms of affirmative action, to not punishing homosexuality. We have a good idea who Kerry justices will be. Breyer and Ginsburg clones. You agree or disagree. What are the Republican commitments? Will Bush go for Scalia, Jr., or O/Connor, Jr. No one knows and they are not saying. The President raises the banner of traditional morality when talking to evangelicals, the Vice President tells suburban Republicans the administration is really committed to liberty. In New York, Republicans sound like Democrats. In West Virginia, they sound like the Spanish Inquisition. President Bush and Justice Scalia give speech and speech decrying judicial activism. They never talk about their support for decisions declaring laws unconstitutional. No one asks the President why he so admires the two greatest judicial activists in American history.

If we are to have conservative judicial activism, it should be subject to public debate. Kerry is consistently questioned about his support for judicial decisions keeping abortion legal. Republicans ought to be asked about their constitutional commitments. The President needs to explain why, if we need a constitutional amendment when one state court legalizes gay marriage, no response of any sort is appropriate when the Supreme Court rules that the federal government cannot punish rape? Does his consistent praise of Justices Thomas and Scalia mean that President Bush will use his influence over the judiciary to ensure that the federal government has no power under the Fourteenth Amendment to prevent violence against women?

Comments:

This barely deserves response, but two things need to be highlighted.

First and foremost, "activist" doesn't mean a court striking down a legislative act or criminal conviction in a fashion you disagree with. It means a court acting to support OR nullify a law in a fashion that diverges with the constitution's mandates. To suggest you can identify activism by the blurbed content of the acts struck down or the sheer number of state and federal acts nullified by the Rehnquist court is simply silly.

But not quite as silly as a claim that Thomas and Scalia are the two greatest judicial activists in history. A statement of that nature does little more than identify how strongly you're affected by your political leanings, or how little you've studied the history of the Court, especially in the progressive era. Hell, why go past Marshall? The man created judicial review out of whole cloth, but Clarence Thomas is his better in the activist department?

Pshaw.
 

Does his consistent praise of Justices Thomas and Scalia mean that President Bush will use his influence over the judiciary to ensure that the federal government has no power under the Fourteenth Amendment to prevent violence against women?Yes.

But c'mon, it's not like that's the only federal power that would be limited or destroyed. Workers, the disabled, minorities, GLBT folks, you name it--the Bush appointed court would gut any and all protections. This is what they want.
 

Mark,

This is by far your most insightful post. As your friend Jack Balkin would probably agree, the divide in terms of theory of interpretation between the right and the left are serious and monolithic.

This is an old saw, but the left considers Constitutional interpretation (and interpretation in general) to be an active process while the right propose and, if we are to take them at their word, believe that the meaning of the text is static, and literal. They see the idea of relativity of interpretation as itself a leftist concept, flawed, perhaps, for a certain inconsistency, incoherence, variability, or uncertainty in its religio-ethical foundations.

In some of my eye-opening blog exchanges with evangelical, pro-Bush types (usually from the working class), I have come face to face with this severe resistance to admitting self-consciousness of the contingency of one's modes of decision on politics, "narrative interpretation," etc.

Though the arguments from these folks usually strikes me as simplistic, that simplicity along with the austere self-confidence, "the courage of their convictions," if you will, is daunting to argue with. Perhaps I simply envy that certainty, but this kind of psychological self-consciousness exemplifies the relativity conservatives distrust.

With the recent Congressional action on the Pledge issue, I wonder if this country will slowly head towards a migration of lefties and righties to different geographical territories (will people move for ideologies?). I feel pretty comfortable in Baltimore, Maryland, where my neighbors are firmly democratic and often green, but I cannot imagine living and bearing the domination by the right in a deep red territory.

Thank you and Jack Balkin for at least taking a step toward making academia accessible to the masses.

www.carlofbaltimore.blogspot.com
 

I do hope that Mr. Chopin will direct us to his source for divining the constitution's mandates. That would be quite helpful for we poor benighted souls who must muddle through interpreting things like the fourteenth amendment and the commerce clause.

On a more serious note, Keck's point is to show how politicized the conception of judicial activism has become. He is right to note conservative hypocrisy on this issue and Graber is right to call for a straightforward, bare-knuckle, political debate over when it is appropriate for courts to invalidate statutes on constitutional grounds.

The screaming irony of observing Republican attacks on activist judges while VAWA goes down in flames and ADA is gutted makes my teeth hurt.
 

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