Every Justice is a ‘Judicial Activist’

In 1787, writing in the Federalist Papers in support of state ratification of the Constitution, Alexander Hamilton argued that the proposed Supreme Court “will always be the least dangerous to the political rights of the constitution.” As for judicial activism, “contraventions of the will of the legislature may now and then happen; but they can never be as extensive as to affect the order of the political system.”

In 2010, as the Supreme Court convenes for a new term, liberals, conservatives and independents all agree that Hamilton’s prophecy was wildly off the mark. Conservatives blame liberals for his errancy. They argue that judicial restraint would be the norm but for the hijacking of the Court liberals’ “judicial activists.”

Liberals, as usual, react defensively. During the Ellen Kagan confirmation hearings, President Obama, a former professor of constitutional law, once again confirmed Robert Frost’s characterization of a liberal as someone so broadminded he won’t take his own side in an argument, when Obama described an activist judge as an anomaly. “(S)omebody who ignored the will of Congress, ignored democratic process and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” He added, “And in the ’60s and ’70s liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. The concept of judicial restraint cuts both ways.”

Obama offered no examples of inappropriate judicial activism in the ’60s and ’70s.

At Elena Kagan’s hearings, Arizona’s Senator Jon Kyl seemed to reinforce the president’s observation when he attacked her for her association with the ’60s and ’70s liberal former Justice Thurgood Marshall. Kyl insisted that Marshall embraced a “judicial philosophy (that) is not what I would consider to be mainstream.”

Kyl also did not specify which decisions he thought were outside the mainstream.

The media didn’t press President Obama or Senator Kyl for specifics. That is regrettable, for if they had done so we might have discovered the awful truth. Judicial activism — that is, the willingness to make or unmake law and expand or contract government — is embraced by both conservatives and liberals in equal proportions. What distinguishes them is not whether they are judicial activists, but on whose behalf they act.

During the Kagan and Sotomayor hearings hundreds of articles and commentaries were written dissecting the various methodologies justices used to arrive at their decisions: Scalia’s originalism, Souter’s interpretationism and Sotomayor’s legal realism. What we didn’t learn was that these methodologies rarely guide the justice to a decision contrary to his or her conception of the end of the law.

Statistical analysis of Supreme Court voting patterns validate the unsurprising conclusion that conservatives interpret the Constitution to support conservative objectives, while liberals interpret the Constitution to support liberal objectives. As Justice Benjamin Cardozo observed 70 years ago, the choice of the rules justices apply “will be determined largely by his conception of the end of the law.”

Constitutional conservatives insist they can be distinguished from constitutional liberals by their support of states’ rights. The facts prove otherwise. Between 1991, when Clarence Thomas gave so-called states’ righters a five-vote majority on the Supreme Court, and 2008 the Court invalidated state actions in 111 of the 202 — or 55 percent — of the cases it decided. During a similar time-span the liberal Warren Court invalidated state actions in l28 of 239 — or 54 percent — of the cases it decided.

When justices vote to overturn federal laws they do so consistent with their political leanings. Scalia and Thomas cast 93 and 85 percent respectively of their federal invalidation votes in furtherance of conservative outcomes while Ginsburg and Stevens vote 70 percent in furtherance of liberal outcomes.

Constitutional liberals were largely states’ righters from 1890 to 1930, when powerful grassroots populist and progressive movements convinced states to enact laws to protect workers and enable unions and curb the growing power of corporations. Constitutional conservatives, then in the majority, overturned these laws, in the process often inventing new constitutional rights for the rich and powerful.

From the 1950s through the 1970s, constitutional liberals, this time in the majority, were most defiantly not states’ righters. But as they did a half-century before, they acted to protect the disadvantaged and the weak. The Court repealed state laws that segregated schools and outlawed interracial marriage. It struck down lopsided malapportioned election districts that kept minorities from attaining fair representation. It required legal counsel for poor defendants and ruled that those arrested must be advised they have the right against self-incrimination.

Justice Antonin Scalia is the poster child for constitutional conservatism and limited government and individual liberty. And he is a self-professed champion of decisions that stem from a strict and originalist construction of the Constitution. If it isn’t in the text, it isn’t. But in his majority opinion overturning a federal law requiring local law enforcement authorities to conduct background checks on prospective handgun purchases, Scalia made no reference to the text of the Constitution. Instead he instructed the reader to focus on the “structure of the Constitution” in order to divine “a principle” governing the case. What principle did he divine? “(T)he very principle of separate state sovereignty.”

So far, so good. State sovereignty certainly is a foundational principle of the U.S. Constitution. But it apparently is not a principle Scalia applies when doing so would lead to an outcome he opposes. He has enthusiastically voted to uphold state laws banning private sex between gay couples while overturning state laws allowing marijuana to be used to reduce debilitating pain and permitting terminally ill patients to die with dignity.

What does this say about constitutional conservatives’ professed support for individual liberty? When states act to restrict individual liberty Scalia finds constitutional reasons to support them. But when they act to expand individual liberty, Scalia finds constitutional reasons to stop them.

Constitutional conservatives don’t use the terms “individual liberty” or “limited government” the way you or I would. Otherwise how could they point to the constitutional liberals’ invention of the right to privacy in the 1960s as one of the most heinous examples of judicial activism? An expanded right to privacy inherently expands individual liberty and protects against intrusive government.

While constitutional conservatives circumscribe individual liberty in the personal sphere they aggressively defend individual liberty in the commercial sphere. But their use of the term “liberty” here seems, at a minimum, to be problematic.

When the Supreme Court was controlled by constitutional conservatives from 1905 to the mid-1930s it invalidated approximately 200 state and federal economic regulations, almost all of which were enacted to protect individual workers, homeowners and communities.

The Court concluded that these protections undermined individual liberty. In 1905 the Court overturned a New York law setting maximum hours for bakery workers. In 1908 it declared unconstitutional a federal law prohibiting employers from dismissing workers favorable to unions.

In 1936 in a decision overturning New York’s minimum wage for women in 1936, Justice Butler, writing for the majority made explicit the constitutional conservatives’ concept of individual liberty. “In making contracts of employment generally speaking, the parties have equal rights to obtain from each other the best terms they can by private bargaining.”

To which dissenting constitutional liberal Justice Stone responded, “There is grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their services for less than is needful to keep body and soul together.”

In 1934 the Court upheld a Minnesota law authorizing its state courts to extend the time before a lender could foreclose on a mortgage property. Constitutional conservative Justice Sutherland dissented. The decision encroached on the “sanctity of private and public contracts.” Using Scalia-like language he declared, “The meaning of the Constitution is fixed when it is adopted and it is not different at any subsequent time when a court has occasion to pass upon it.”

Some 70 years later, in 2003, the conservative Future of Freedom Foundation specifically singled out the Minnesota case to applaud Justice Sutherland and condemn the constitutional liberals’ willingness to submerge individual liberty to the “collective interests of ‘society.'”

And then there is the Citizens United case, a much discussed decision which, to use Hamilton’s words, is certainly so “extensive as to affect the order of the political system.” The Court decided that corporations are people and have the right to spend an unlimited amount of money to influence elections.

Again it is useful to follow Justice Scalia’s reasoning. The strict constructionist, originalist Scalia can, of course, find no mention of corporate rights in the Constitution. The framers of the Constitution would have found the idea of a corporation being a person, and able to dramatically and directly influence elections both bizarre and offensive.

Scalia, the champion of strict constructionism, who insists that we must look to the text for guidance, concedes that the Constitution does not say that corporations are people or that they have free speech or that they can finance elections. And he concedes that the framers hated corporations. But he contends, breaking new methodological ground, the Constitution also doesn’t say that corporations aren’t people and they don’t have the right of free speech and they are not allowed to influence elections. Therefore, he concludes, corporations should be presumed to have these rights.

Anyway, he adds, in a comment that must be intended to exasperate historians everywhere, “Even if we agreed that the Founders disliked founding-era corporations; modern corporations might not qualify for exclusion…Modern corporations would probably have been favored by most of our enterprising Founders….”

Such is the logic of a constitutional conservative. Compare this to the clear thinking of the minority liberal justices in a 1977 case that reversed a longstanding policy allowing states to curb spending by corporations on ballot measures. Justices White, Marshall and Brennan insisted, “The special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only our economy but the very heart of our democracy, the electoral process. The State need not allow its own creation to consume it.”

Can anyone with a straight face argue that Washington and Madison and Jefferson and Adams would have preferred Scalia’s reasoning to Marshall’s?

The Citizens United decision has already changed our political future. And we are only at the beginning of the new era. Buying elections is an excellent business investment since the decisions of sympathetic officials (and increasingly, elected judges) can dramatically increase corporate earnings and reach. Which justifies a tidal wave of investments that could wash our democratic foundations. Exxon Mobil’s profits in 2008 totaled $85 billion. If it spent 10 percent of those profits influencing elections that would amount to more money than was spent that year by presidential campaigns, all house and senate campaigns and all state legislative campaigns in the country combined. And that is the political investment that can be justified by only one corporation.

After the Citizens United decision there was a flurry of publicity about the Roberts Court and its conservative leanings. But it never blossomed into a full-fledged discussion about the difference between constitutional conservativism and constitutional liberalism. Conservatives still control the narrative and so long as they can keep the conversation abstract they win. As long as they can proclaim to be the party of individual liberty without pointing to Court decisions that validate that claim, they win. As long as liberals like President Obama decry liberal judicial activism without specifying which decisions he would overturn, it allows conservatives like Senator Kyl to decry liberal activism without specifying which decisions he would overturn. And without specificity, conservatives win.

Virtually all Supreme Court justices are judicial activists. They differ only with respect to whom they are acting for. We need a national conversation, not about judicial methodologies, but about judicial outcomes. We might begin modestly by asking liberals and conservatives to identify 10 Supreme Court decisions they would overturn and why. Only by making concrete our definitions of “individual liberty” and “limited government” and “justice for all” can we get beyond labels and engage in an honest and extended conversation about our political future.

This article originally appeared on Alternet.

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David Morris

David Morris is co-founder of the Institute for Local Self-Reliance and currently ILSR's distinguished fellow. His five non-fiction books range from an analysis of Chilean development to the future of electric power to the transformation of cities and neighborhoods.  For 14 years he was a regular columnist for the Saint Paul Pioneer Press. His essays on public policy have appeared in the New York TimesWall Street Journal, Washington PostSalonAlternetCommon Dreams, and the Huffington Post.