Conservative Judicial Activism

When was the last time – outside of a political science seminar – that you heard the phrase “conservative judicial activism”?  In connection with the Taney Court, perhaps, which issued the notorious Dred Scot decision in 1853?  In the wake of the truncated aftermath of Election 2000?  Perhaps never.  Perhaps you should hear it more often.

With all the talk now, in the wake of the Terry Schiavo case, about “out-of-control” judges, and “reining in” the judiciary, and the “nuclear option” of revising Senate filibuster rules, it is worth taking a closer look at the idea that the nation’s courts are stocked with renegades.  One of the more muscular tentacles of right-wing Conventional Wisdom is the notion of “activist liberal judges,” a phrase that (by design) evokes images of Perrier-sipping ideologues running roughshod over the will of Congress and therefore over the will of the American people. Like the myth of a “liberal media,” it has been used to great effect in turning public attitudes not only against the policies that conservatives oppose, but against the institutions and individuals that do not hew to the conservative line.

What we’ve seen in recent years, however, is a sharp rise in conservative judicial activism, with federal jurists appointed by Republican Presidents exerting power from the bench much more aggressively.  In addition, the appointment of activist conservative judges is likely to increase in coming years because the conservative movement has created a system for grooming young lawyers and jurists and training them in conservative legal ideology.  This system, involving such groups as the Federalist Society, represents a veritable pipeline leading from right-wing think tanks to the nation’s courts, not to mention state legislatures and Congress.  The next generation of conservative law students, in a way that their liberal and moderate counterparts can only envy, enjoys the support of an incredibly well-funded institutional infrastructure that is paving the way to political power – through contacts, clerkships, publishing opportunities, and what might be called ideological mentoring. 

These facts need to become part of the conversation that Americans have about the judiciary. What is at stake are not just individual cases and decisions, but the ability of the government to respond to social, economic, and environmental challenges.  Since federal judges are appointed for life, the ones that take office today could serve for as long as 30 or 35 years, and their decisions will be felt for generations.  That explains why the current battle in Congress over judicial appointments has become so fierce, and why conservatives are taking off the gloves now, while they control both the executive and legislative branches, in order to get every one of their appointments through.  It also explains why moderates and progressives need to stand firm in the face of the juggernaut.  The stakes are simply too high. 

So what is "judicial activism"? Essentially, it refers to the willingness of judges to overturn laws – and to their actually doing so. Then it gets more complicated.

In its classically “liberal” form, judicial activism has implied an approach to the Constitution that emphasizes the ambiguity of language, recognizes the flexibility of meanings and circumstances, and tries to respond to the spirit of the document. In certain cases it has resulted in the establishment of legal principles, such as the right to privacy, which are seen to “inhere” in the Constitution, despite the fact that the words themselves do not appear there. What conservative commentators have done, with the Warren Court as whipping boy, is to wrap this all up as “loose constructionism” and then associate it with a general cultural permissiveness and a “politicization” of the law that they blame for the decline of post-Eisenhower America.

But stop right there. Conservatives have their own brand of judicial activism, no less ideological and no less influential. It is distinct in its methodology (tending toward a narrow interpretation of text) and in its values (tending to give priority to property rights over civil rights, for example). Yet when it comes to the fundamental action of activist jurisprudence – the overturning of laws – conservative and liberal judges are equally powerful. We should evaluate their decisions, therefore, not just on abstract principles of jurisprudence, but on a real-world assessment of who wins and who loses, of which interests are served and which oxen gored.

Consider: According to University of Virginia professor David O’Brien, the Rehnquist Court has now overturned more federal and state laws than the Warren Court. It is by definition more activist. Admittedly, not all of these overturnings have been conservative in their direction, and some are hard to classify, particularly those in which two Constitutional rights conflict. This makes the effort to define decisions as “liberal” or “conservative” often problematic.

For instance, if the McCain-Feingold campaign finance legislation had been thrown out, the decision would have grounded itself on the civil liberty of free speech, and might therefore be coded as “liberal.” Yet the rationale would be based on a “conservative” interpretation of the first amendment, namely that spending money is a form of free speech. So the better way to understand such a decision would be to look at its practical results in the political arena. In this hypothetical case, overturning McCain-Feingold would disproportionately benefit conservatives by keeping open the pipeline of corporate money to conservative office-holders.

These caveats and complexities, however, should not obscure the central point. A judicial activism based on conservative principles and serving conservative interests is making itself felt in a wide range of policy areas, from affirmative action to environmental regulation to electoral procedure. The canard that liberal judges rule the roost is as misleading as the myth of liberal media bias. And it will only become more so as the Senate attempts to ram through President Bush’s judicial nominees.

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