Politics, Principle, And Constitutional Interpretation

In the past few days there have been three articles by intelligent and thoughtful liberal commentators who attempt to frame the coming debate over judicial appointments. I find all three very interesting but also troubling to varying degrees. It’s worth reading all of them, for taken together they provide a preview of the positions conservatives will be called upon to rebut.

Both E.J. Dionne and Jeffrey Rosen are at pains to criticize what Dionne terms “conservative judicial activism.” Conservatives, writes Dionne,

say that they oppose judges who “legislate from the bench” and that they hope to fill the judiciary with “strict constructionists.” That sounds good, because we want democratically elected politicians, not judges, making the crucial decisions. Yet, at this moment in our history, it is conservative judges who want to restrict the people’s right to govern themselves.

That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.

Rosen makes the same point, distinguishing between good conservatives — “principled conservatives (who believe in deference to legislatures through judicial restraint)” and bad conservatives — “conservative activists (who are determined to use the courts to strike at the heart of the regulatory state).”

Both Dionne and Rosen, in short, make something of a litmus test out of “deference to legislatures,” especially Congress. Liberals, needless to say, were not always — in fact, even quite recently were not — communicants in the church of judicial passivity. But, hey, people, even movements, change their minds. Nothing wrong with that (“As you more than others should know!” I can hear my few remaining lefty friends shouting. Whaddya mean? I didn’t change. You did! – ed.). Still, there is something bothersome about what purports to be a principled argument following so closely and so neatly a shift in partisan fortunes and the attendant shift in make-up of the courts.

Mark Tushnet, in a contrast that is more apparent than real, argues that “On the Rehnquist Court, Everyone Has Been a Judicial Activist.” In his view,

The story of the Rehnquist Court is the story of a court divided not simply between liberals and conservatives but, more important, between two types of Republicans. Rehnquist, Antonin Scalia, and Clarence Thomas, speaking for the modern Republican Party, transformed by Barry Goldwater and Ronald Reagan, have rejected the principles that animated our government from the New Deal through the Great Society. Sandra Day O’Connor and David H. Souter have drawn on more-traditional Republican Party themes to temper and resist a transformation of constitutional law.

But note that Tushnet is not arguing that O’Connor and Souter are any less “activist” than the judges Dionne and Rosen label activist. Indeed, he writes,

The civics-book view of the court — that conservative and liberal justices divide over whether the court should be restrained or activist and that they use either the original intent of the Constitution’s framers or contemporary values in interpretation — is a fairy tale. Nothing like it has gone on in the Rehnquist Court. Everyone has been a judicial activist….

Justice O’Connor has joined the court’s modern Republicans in [economic regulation] cases because her jurisprudence supports a form of judicial activism that is not particularly concerned with original understandings. Justice Souter has opposed the decisions because he finds them incompatible with the sensible operation of modern government.

The problem here, at least as seen by conservatives and any remaining Frankfurtian liberals, is that Justice O’Connor, unconstrained by text or principle, freely goes here and there (and in redistricting and affirmative action cases, back again) reaching whatever result she favors at any given time, and no one elected Justice Souter to impose his views of what is “sensible.”

At one point I think Tushnet’s argument goes off the rails, and it is at the point that also reveals what I think is a glaring weakness in the Dionne/Rosen position as well. In making the point that the issues pushed by economic conservatives have succeeded on the court while cultural conservatism has not been successful, following their fate in the political arena, Tushnet writes that

There is not a lot that Congress can do concretely to advance the social-conservative agenda, except through symbolic actions like enacting laws attempting to limit the jurisdiction of the federal courts to decide cases involving the Pledge of Allegiance.

This is not true. There is a good deal that Congress could do if it chose, such as repealing its various racial set-asides and legislating (or rather, re-legislating) a general regime of colorblindness. That Congress has been reluctant to do this reinforces Tushnet’s point about the political fate, so far, of cultural conservatism, but that is not to say what Congress can and cannot do.

As I have noted, both Dionne and Rosen make a virtual litmus test out of judicial deference to Congress, but this issue is not nearly as simple and straightforward as they imply. Take, for example, the Civil Rights Act of 1964, the crowning legislative achievement of the civil rights movement. Title VI of that Act, often quoted here, says

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. [42 U.S.C. § 2000d]

If in Bakke the Court had insisted on interpreting the Civil Rights Act as written, and intended, and invalidated racial preferences in college admissions, putting an end to the practice, would that have been “conservative judicial activism” (a curious term for a position supported by the liberal Chief Justice of the California Court and the U.S. Supreme Court’s most liberal justice of that era, William O. Douglas)? Would it not instead have been insisting on implementing the will of Congress? And, of course, if Congress disagreed it could rewrite Title VI and specifically allow racial preferences.

Liberals would certainly object if a future Court then proceeded to invalidate such a rewritten Title VI, but they could not justify their position as based on a principle of judicial restraint unless they were willing to grant Congress a carte blanche to discriminate on the basis of race whenever and however it chose.

Or take the Bob Jones case (discussed here and here), where the Supreme Court upheld the IRS’s decision to revoke the conservative Christian college’s tax exemption because of that school’s policy against interracial dating (discrimination in admissions etc. was not shown or even alleged). The tax code the IRS was charged to enforce provided for tax exemptions for “religious, charitable or educational” institutions, and no one denied that Bob Jones was both educational and religious. In a decision that was applauded by liberals, and others, the Court decided by an 8-1 vote, with only Chief Justice Rehnquist dissenting, to defer to the IRS. But if judicial deference is to be the new liberal principle, shouldn’t liberals also endorse deference to other executive agencies, such as the FBI and the Dept. of Justice? I must have missed this if they have done so.

It seems to me that the point of principle, whether in a normal person or a judge, is not only to chart a course of action or to set out rules of interpretation but also, and perhaps more importantly, to prevent one from doing, or deciding, what one would otherwise have done in the absence of the principle.

I find both judicial deference and “strict constructionism” to be rather appealing principles of proper judicial behavior. Liberals today seem, somewhat confusingly, to favor judicial restraint even as they reject the idea of deference to a strong text, whether constitutional or legislative, that can serve as the basis of that restraint.

“Judicial deference,” in short, as much as “judicial activism,” seems more often than not to be in the eye of the beholder.

Say What? (3)

  1. Laura November 26, 2004 at 8:20 am | | Reply

    I’m less interested in having conservative justices now and forever than I am in making sure there is always enough power on both sides to maintain a dynamic balance.

    Take environmental legislation for example. People who run chemical companies don’t want to pollute the Earth. Why would they? They have to live here too, and so do their children and grandchildren. But the most immediate concern to them is their bottom line, and so they are naturally going to lean toward the side of profitability and away from expensive pollution control if there’s any wiggle room in the environmental regs. Likewise, Greenpeace and Sierra Club members don’t want to see the economy in the gutter; they have to make a living too. But they’re going to give far more consideration to the environmental impact rather than the economic consequences of getting all they want. As long as both sides have their say and get their day in court, I think we have a good chance of striking the right balance. So I think all the debate we read about on this issue and all the other controversial issues is a wonderful thing, and the more heated the debate the stronger we are as a country, and the more hopeful our future. Let one side or the other get the upper hand for any extended length of time, and they’ll pull us over a cliff.

  2. The Precinct Chair November 26, 2004 at 11:37 am | | Reply

    Congratulations, Lance — you’ve just described how a legislative body is supposed to work.

    Unfortunately, we are talking about the role of a court here, a body which is supposed to take tha law and constitution as written and apply them neutrally in given situations.

    Read the opinions of Thomas and Scalia — heck, go back and read the opinions by New Deal liberal Felix Frankfurter — and you will see what I’m talking about. Unfortunately, the Warren Court adopted the model of judge as Knight Errant, traveling about looking for wrongs to right. And if that meant sacrificing both the law and the constitution on the altar of of some greater good (as defined by the judge), then so be it.

  3. The Precinct Chair November 26, 2004 at 11:45 am | | Reply

    Sorry, Laura — I misread the name before. Let me continue my reply from above.

    Thus you get Brown v. Board of Education bolstered not by solid historical research or constitutional text (which would have supported the outcome the court reached), but by junk social science by a European soc ialist. Today it gets O’Connor’s repudiation of the text of the Constitution and 1964 Civil Rights Act — but just for the next quarter century — to uphold affirmative racism at the University of Michigan. The law doesn’t support the position, nor does the Constitution — but no one can stop O’Connor the Wise from riding herd at the head of a majority of the Supreme Legislature.

    Unfortunately, she is supposed to be a justice of a Supreme Court.

Say What?