an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Senator Sessions to oppose Elena Kagan for promising to exercise judicial restraint
With the Kagan nomination, the traditional Republican mantra of opposing judges who will not exercise judicial restraint and who will "legislate from the bench" has now been almost completely transformed into its opposite. On the one hand we find this familiar rhetoric:
Her self-identified judicial heroes are among the most activist judges to ever serve. She even worked to confirm ACLU General Counsel Ruth Bader Ginsburg, the most activist judge now on the Supreme Court.
This rhetoric would suggest that the problem with Kagan is that she will not pay sufficient deference to democratically elected legislatures. But if you read further, you see that Sessions is unhappy because Kagan won't strike down enough laws.
President Obama himself has said that he looks for judges who will impose "their broader vision of what America should be." That is what he thinks he has in Ms. Kagan: someone who shares his big-government vision for the country, and who is willing to advance it from the bench.
In fact, when asked at the hearing, Ms. Kagan was unable to identify any constitutional limits on the government's power to control people's economic decisions.
Americans who are deeply troubled by Washington's growing disregard for the Constitution should also be troubled by this nomination. No senator should vote to confirm an individual to any court who lacks fidelity to the law.
The key rhetorical pivot is that even if a judge exercises judicial restraint, as previous generations of conservative Republicans have insisted judges should, it is in the service of a "big-government" vision and so it lacks fidelity to the law. In this way Sessions turns the familiar conservative rhetoric upside down.
We have been witnessing this rhetorical transformation for some time. Conservative Republicans have long sought judges who would use judicial review to strike down campaign finance laws, regulations of commercial speech, environmental and land use regulations, and limit federal civil rights awards. With the rise of the Tea Party movement, however, some conservatives have begun to argue that the federal courts should now strike down social and economic legislation like the health care bill.
A more aggressively conservative small-government version of Republicanism will increasingly find the language of "judicial activism" awkward and inappropriate because what many conservative Republicans want is an active judiciary that will not hesitate to strike down state and federal laws. Similarly, the familiar charge of "legislating from the bench" makes increasingly less sense as conservative judges are called upon to second-guess actual legislatures. The rhetorical shift to "fidelity to the law" avoids the embarrassment of using the conservative slogans of an earlier era in contexts to which they are not well suited.
In fact, the emerging conservative rhetoric about judges is quite similar to the conservative rhetoric at the turn of the 20th century, in which the role of the federal judiciary was to serve as the guardian of limited government and prevent state legislatures and Congress alike from interfering with property and contract rights.
I regard the Tea Party movement not as a distinctly new phenomenon but rather as a crystallization of certain elements of the Republican base, which are interested in shrinking the size of the federal government by any means available, including judicial review. In this new political climate, conservatives must find new ways to justify an active judiciary and brand judges who would exercise judicial restraint and defer to the policy judgements of democratically elected representatives as "unfaithful to law." Liberals, conversely, have increasingly complained about judges on a rampage. We see the most remarkable example of this in McDonald v. City of Chicago, in which Justice Stevens and Justice Breyer engage in paeans to judicial restraint and the ability of the states to experiment with social policy that would have done critics of the Warren Court proud.
The fact that liberals and conservatives have switched places on the issue of judicial review (in fact they did so long ago on selected issues like affirmative action, campaign finance and commercial speech) is not due to the fact that politicians are somehow less principled than they were in the past. Politicians have never been particularly principled when it comes to how the courts exercise judicial review. Rather, it is due to the changing mix of constitutional issues before the federal courts. As the mix changes, politicians adjust their rhetoric, depending on whether they want judges to police certain kinds of laws or defer to them. Few politicians are consistent on these issues; rather they employ contrasting views about judicial power in order to promote their policy preferences, please interest groups and mobilize their constituents. Senator Sessions is not particularly unusual in that respect; he offers us only a particularly blatant and clumsy example of how politicians talk about courts. Posted
by JB [link]