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?

Posted 1:27 PM by Mark Graber [link]