Cass Sunstein, prominent University of Chicago law professor and at least occasional consultant to Senate Democrats (see here), worries in a New York Times (where else?) OpEd that with the Republican victory the conservatives are now poised to take over the courts. Oh yes, and that “Republicans, no less than Democrats, should be alarmed.”
Sunstein is against “judicial activism,” which he seems to define as invalidating anything that has “bipartisan support.” I think that’s a rather all-encompassing principle, if it’s a principle at all. (Certainly most of those who agree with it now will discard it faster than yesterday’s news whenever liberals next predominate on the courts.) But I will leave that theoretical discussion to others.
What I would like to highlight is simply one example in his parade of bipartisan policies for whose future he fears: “Activist courts are poised to forbid affirmative action programs that have support from Republican lawmakers.”
I’m having trouble moving beyond the novel theory that nothing can be unconstitutional if some members of both political parties support it. But moving on, the affirmative action program most immediately threatened almost certainly has to be preferential college admissions. Thus it would be helpful if Prof. Sunstein could inform us where “Republican lawmakers” have supported such programs, or Democratic lawmakers for that matter. Most racial preferences, and all preferential admissions programs I’m aware of, were adopted without benefit of any legislation at all.
UPDATE – Kaimi Wenger enters a thoughtful demurrer (note legal jargon, which may or may not be apt but sounds good) to my above criticism of Cass Sunstein’s OpEd, and putting me in good company, to InstaPundit’s criticism as well.
Actually, I have no disagreement at all with Kaimi’s post. I wasn’t criticizing Sunstein’s “overall theme” or what he could have written in defense of it. I was criticizing what he actually wrote in the OpEd, which to his credit Kaimi does not specifically defend. Too bad he didn’t write the OpEd.
Well, er, isn’t the argument that the courts have routinely interpreted the Civil Rights Act of 1964 to require preferences in many cases?
I mean, even though the language would seem to forbid it, to anyone who can read English?
Dean
The courts have certainly interpreted the 1964 Civil Rights Act to allow racial preferences. Since preferences were clearly not intended (Humphrey famously said he’d eat his hat if the act were so interpreted), perhaps Sunstein should criticize those interpretations as judicial acitivism….
> Humphrey famously said he’d eat his hat
Oh come off it. Humphrey was indeed legislating preferences, he just didn’t know it. We all needed the courts to come along and tell us what we should do…
</sarcasm>
Thanks for your comments. Sunstein is usually pretty brilliant–it’s disappointing that he uses such obviously bad reasoning in this op-ed.
A few clarifications: the Supreme Court has not generally interpreted the Civil Rights Act to allow racial preferences. The line of cases from Bakke to Croson to Adarand support instead the rule that colleges may allow race to be a “plus factor” to tip the scales in favor of a particular candidate (“just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases,” Bakke)–but racial quotas are not allowed. The Courts still interpret the Fifth and Fourteenth Amendments to protect *persons* not groups. “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.” Bakke.
[N]othing can be unconstitutional if some members of both political parties support it.
I don’t know how accurate your statement is–both parties can pass (and have passed) entirely unconstitutional
legislation. A recent federal law criminalizing internet pornography (which received bipartisan support) was struck down by the Court because it violated the First Amendment.
Keep up the good work
Christine, Thanks for your comment. You’re of course right about how the Court has handled preferences recently. I was thinking not so much of Bakke (though, despite nice languaghe, it authorize future preferences) but of Weber, Fullilove, et. al. Fortunately, those now seem to be superseded. As for “nothing can be unconstitutional…,” I was attributing that view (fairly, I think) to what Sunstein wrote in his OpEd. It is not my view. Thanks again for your nice words.
I always thought “judicial activism” referred to judges who interpreted the law in a way that led to a desired result, rather than reaching a result by honestly interpreting the law. Under that definition, it wouldn’t be activist to strike down a law/policy that the judge honestly believes violates the Constitution — even if it was supported by both parties, the President, and 99.9% of the American public. What would be activist is if the judge believed the law was unconstitutional, but voted to uphold it because he/she thought it was a good idea.
Obviously Sunstein and I have a different view of “judicial activism.”
I’m not sure whether Sunstein’s references to bipartisan support are supposed to suggest that these are therefore constitutional laws being struck down by an activist court or whether they are being adduced to make the point that Republicans should be concerned, because Republican laws may be struck down (whether rightly or not).
Perhaps you’re right. At the very least he’s guilty of sloppy, ambiguous prose. Or maybe the real guilty party is the NYT.
Jeff, Orin Kerr at the Volokh Conspiracy has posted on what “judicial activism” means in a way that might be helpful to you. He actually produces three different definitions! Here’s the link to copy and paste into the address bar: http://http://volokh.blogspot.com/2002_11_10_volokh_archive.html#85660689
I seem to recall reading about specific cases in the 1970s where the courts interpreted the lack of sufficient minorities as prima facie evidence of discrimination in certain cases, and that the Civil Rights Act thus required some forms of quotas in certain circumstances.
I’m not sure if any such decisions are still in force, but I could look up references to them if you think that would be helpful. (Then again, knowing you, you’re fully aware of this and it’s just not relevent.)
Dean, I suspect that the cases you’re referring to are Weber and Fullilove (I’m not going to look up the cites or the official summaries now.) Weber held, mistakenly in my view, that the Civil Rights Act of 1964 did not prevent a private employer from creating some management-training openings available only to minorities. Fullilove allowed Congress to “set aside” certain contracts for minorities. (I’m doing this from memory and so may be slightly off, but not terribly so.) I don’t believe the Court ever held the Civ Rights Act actually required quotas, only that it did not bar them in certain circumstances. The legislative history of the CRA is replete with one quote after another saying different versions of “no quotas,” but Ronald Dworkin and other clever liberals argued that all that meant was that the CRA could not be read to impose racial preferences, not that it prevented them. Again, I think this view was mistaken.
For a thoughtful comment on judicial activism, see the literal “Comment” by Brendan Maher to Kaimi Wenger’s post on Sunstein:
http://wenger.blogspot.com/2002_11_10_wenger_archive.html#84314204
http://www.bestlowmortgagerates.com
http://mortgage-calculator.bestlowmortgagerates.com
Mortgage Calculator
Florida Mortgage