Activist judges

Barack Obama has an opportunity to fill a great number of vacancies on the court. And, as is typical of Obama, he's looking to fill them with non-ideological pragmatists (much like himself). Sotomayor is a great example of that brand of judge -- and one you would expect to not be too difficult to confirm in our new warm and fuzzy post-partisan era.

Alas, one of the few things Republicans in Congress seem to be able to do is to block judicial and administrative appointments, using ideological arguments (charges of "racism" against a Latina woman from the Bronx comes to mind) against non-ideological targets. The one thing that still riles up the base of both parties is judicial appointments, and the Republican Party right now is nothing without their extreme base.

Jeffrey Toobin looks at Obama's view of the courts, most notably his realization that progressive causes can no longer rely on the courts, but must make gains legislatively, unlike during the Civil Rights era. In fact, Toobin writes, all Obama is asking of the courts, the Supreme Court especially, is that they stay away from his legislative agenda. He wants things to more or less stay the way they are -- the opposite of "activist judges," the charge conservatives usually make on Democratic judicial choices. The phrase still works the base up to a frenzy.

But it's a false charge because, on the contrary, it's the Right that is now looking to the courts for redress and it's judges from the conservative spectrum that are the activists now, similar to the 1930s when activist judges tried to derail the New Deal.

In a way, Democratic Constitutionalism goes back to the origin of the activism-vs.-restraint debate. In the late nineteenth century, a conservative majority on the Supreme Court embraced a kind of activism when it struck down several state and local measures intended to regulate the economy or to protect workers. In the nineteen-thirties, a conservative majority on the Supreme Court struck down several early New Deal measures; in these cases, the Justices ruled that Congress lacked the constitutional authority to launch such federal initiatives as the National Recovery Administration. Franklin D. Roosevelt initially responded to these defeats with his infamous court-packing plan, but in time he was able to appoint Justices who deferred to legislative judgments about how best to address the Depression. In other words, in that era liberals believed in restraint, and conservatives were the activists. (That flipped in the Warren era.) Notably, when Sotomayor was asked her favorite Supreme Court Justice, she named Benjamin Cardozo, who was a leader in fighting the conservative activism of the thirties on the Court.

“What you’ll get with Obama is basically Carolene Products—‘Leave me alone on economic issues and protect me on civil rights,’ ” Richard Epstein, the conservative legal scholar who was interim dean of the Chicago Law School when Obama taught there, said. Carolene Products was a 1938 decision, involving skim milk spiked with non-milk fat, in which the Court set up a structure that would shape constitutional law for the next several generations. The Justices gave the elected branches a more or less free hand on economic issues but exercised greater scrutiny of measures that affected minorities. “Obama has nothing much he wants from the courts,” Epstein told me. “He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.”

As David Strauss observed, “Fighting over the courts is not going to be a high-priority issue for Obama or the Democratic coalition. The Republican coalition cares a lot more about it at this point, because they want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats. The Democratic agenda is more democratically focussed on legislation.”

In recent years, thirties-style conservative judicial activism, targeting federal legislation, has been returning to the Court. As Cass Sunstein, a former professor at Harvard Law School, writes in the “2020” collection, “Increasingly, conservatives have been drawn to ‘movement judges’—judges with no interest in judicial restraint, with a willingness to rule broadly and a demonstrated willingness to strike down the acts of Congress and state governments. Movement judges have an agenda, which, as it happens, overlaps a great deal with the extreme wing of the Republican Party.” Sunstein notes that the Rehnquist Court struck down more than three dozen federal enactments between 1995 and 2004—“a record of aggressiveness against the national legislature that is unequaled in the nation’s history.”

Over time FDR was able to reconstitute the court in a more conservative fashion. Let's hope Obama can replicate that history, but with relative youngsters in the activist majority, it's a long shot.

UPDATED to fix the usual suspects of typos