Do Liberals Really Like Judicial “Deference”?

As everyone knows, it is very difficult to separate politics from principle in trying to proscribe how judges and courts should behave. Take, for example, the tired debate over judicial “activism” vs. judicial “deference”: Is it necessarily “activist” for the Supreme Court to bar a Congressional or state violation of a constitutional right? What about when the Court is deferential only to Itself, as when it lets stand a precedent that a new Court majority believes wrongly decided?

If this were an easy problem it would have been solved long before now. Still, much of the current debate over activism vs. deference, which is sure to increase as the nomination struggles intensify, strikes me as remarkably simple-minded, which is to say partisan and result-(or hoped for or against result)-driven. Unfortunately, even those commentators who are least partisan, most thoughtful, and generally the most level-headed seem to have been swept along by the currents of a new consensus that has buoyed some liberal hopes, or at least allayed some liberal fears: maybe Roberts wouldn’t be so destructive after all.

A case in point was provided by Stuart Taylor, one of my favorite legal commentators, in his Sept. 2 column in National Journal. In discussing what effects Roberts’s likely nomination will probably have, Taylor writes the following regarding racial preferences:

In 2003, in a 5-4 decision upholding the racial preferences in admissions at the University of Michigan Law School, O’Connor moved the Court toward greater acceptance of affirmative-action preferences than ever before, at least in education and perhaps also in employment and contracting.

Roberts may move the Court in the opposite direction. The memos and briefs he wrote while in government exude dislike of “quotas” and other racial preferences, and of using the Voting Rights Act to require race-based election districts.

On the other hand, it would be surprising to see Roberts translate his policy objections into a broad-based constitutional ban on racial preferences. That would be a most immodest exercise of judicial power, junking not only the 2003 precedent but also the considered judgments of Congress, the military, most states, and almost all universities that preferences are sometimes necessary to promote diversity.

I would have expected something better than this from Taylor. Reversing racial preferences would indeed be “a most immodest exercise of judicial power” if it resulted from Roberts “translat[ing] his policy objections into a broad-based constitutional ban on racial preferences,” but there is no reason to believe that any such reversal or curtailment of preferences Roberts may produce would be the result of his “policy objections.” Indeed, there is a mound of evidence, picked over greedily by Roberts opponents, indicating that he has profound constitutional objections to the racial discrimination that is the essence of racial preference policies.

For instance, as just one of many examples, consider the following from the front page of a recent Washington Post:

In 1990, the Federal Communications Commission asked the first Bush administration to defend a policy aimed at encouraging more minority ownership of broadcast stations. As the number two man in the solicitor general’s office, John G. Roberts Jr. played a critical role in the government’s decision to reject the request, according to documents that came to light yesterday….

The case had the potential to sweep aside similar minority preference programs throughout the federal government. Three days later, the chairman of the FCC wrote to then-Attorney General Richard L. Thornburgh, asking that he persuade the solicitor general’s office to reconsider. Because Starr had recused himself, Roberts was acting as solicitor general. His view prevailed in the administration, and he went on to argue that the FCC’s policy violated the 14th Amendment’s equal-protection clause because it unfairly discriminated based on race.

It is not clear whether Roberts believes wrongly decided precedents should take precedence over a correct interpretation of the Constitution, but I believe it is clear that it is not fair or accurate to say that any opposition he may display towards racial preferences is the result of nothing more than his “policy preferences.”

Nor, for that matter, is it clear why Taylor is so sure that “most states” favor racial preferences. Consistent opinion polls over many years refute that notion, as do the votes in the only two states that so far have actually voted on the question, California and Washington. If liberals really believed that “most states” favor racial preferences, they wouldn’t be trying so hard to keep the question off the ballot in Michigan.

So, another question: is a court being “activist” if it takes a principled position according to its view of what the Constitution requires, a position that moreover is supported by a substantial majority of the population but to which “Congress, the military, most states, and almost all universities” have steadfastly refused to defer?

In a similar vein, take a look at the following comment from David Broder, dean of Washington reporters:

[President Bush] will be under pressure from the right wing to name someone as conservative as Roberts, or more so, to the court. Those groups that want to reverse or curtail Roe v. Wade , end affirmative action in college admissions and hiring, limit federal environmental regulation, or restore prayer to public schools and allow the public display of the Ten Commandments can sniff a possible breakthrough.

But you have to wonder how many of those issues the political side of the White House really wants to reopen to debate. Republicans are on the defensive about the war in Iraq, the handling of Hurricane Katrina, Social Security, immigration, health care and the budget. Do they really want to see a Bush-remade Supreme Court enable Democrats to blame the GOP for reversing course on abortion, civil rights and the environment?

I am not really surprised that Broder assumes that the effort to “end affirmative action” is the same thing as “reversing course” on civil rights. I wouldn’t expect him to agree with me that ending racial preferences (unlike Taylor, Broder refuses to use the more accurate and descriptive term) would be an enormous advance in civil rights. But I am, I confess, a bit surprised by the unabashedly political criteria that Broder seems to favor for both the White House’s and the Court’s approach to interpreting the Constitution. The president, Broder appears to believe, should and probably will try to find a nominee for O’Connor’s position who will accommodate the White House’s presumed preference to avoid controversy over some issues as much as possible. President Eisenhower no doubt felt the same way about school desegregation; should the Warren Court have accommodated him?

Finally, Jeffrey Rosen, another serious commentator, points out that Congress is not without power to deal with a Court that it finds insufficiently deferential.

For example, federal civil rights laws that forbid state programs and institutions receiving federal funds from discriminating on the basis of race and sex depend on a broad interpretation of Congress’s spending power. Similarly, Congress can use its spending power to circumvent the Supreme Court’s attempts to strike down federal laws under the Commerce Clause. For example, after the Supreme Court held in 1995 that a federal regulation prohibiting guns in schools exceeded Congress’s power to regulate interstate commerce, President Clinton pointed out that Congress could achieve the same result by denying federal funds to the handful of states that refused to prohibit guns in schools on their own.

Good point. In fact, such a good point that I myself made it here in arguing that “Republicans Could Reverse Grutter.” Rosen recognizes Congress’s power to cut off funds to discriminating institutions, but I wonder what he would think if it actually exercised that power. Indeed, I wonder how many liberals would rejoice at the Court deferring to Congress if the Congress were, somehow, to receive a sudden infusion of backbone (perhaps after a Michigan vote in 2006 rejecting racial preferences), rose up, declared that it meant what it said in Title VI about cutting off federal funds to any educational institution that discriminated on the basis of race, and proceeded to do so regarding every institution still practicing racial preferences.

ADDENDUM

Probably about the same number who would rejoice if a future Court, following the precedent of Bob Jones University v. United States (discussed here and here), deferred to a future IRS determination that racial preferences, based as they are on treating people differently based on their race, was “against public policy” and that institutions engaged in that practice would lose their tax exempt status.