Friday, March 26, 2010

Are we all activists now?

President George W. Bush reminded us any chance he got that he would only appoint strict constructionists -- whatever that means -- to the federal bench. These would be judges in the mold of Justices Thomas and Scalia. This is a conservative canard, but one with plenty of traction among the public.

An article posted today by Linda Greenhouse reminded me of this old debate. Greenhouse is weighing in on looming constitutional attack on the health care bill and argues that the Supreme Court is unlikely to strike down the recent legislation. I agree with her position wholeheartedly. But her article is far more important for all that it implies about judicial behavior and the many relevant influences on federal judges.

Three passages in particular caught my attention.

The first passage responded directly to the states' arguments against the health care legislation. As she points out, one can find much commentary on this questions around the blogosphere, often made by people who ought to know better. For, as Greenhouse writes, "the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no." This is, without question, the crux of the case. Will the conservative justices have the will to take on the landmark health care legislation? Or in Greenhouses words, "Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about."

Make no mistake, to take on the health care legislation would entail judicial activism of the highest order. In the wake of Citizens United and, a decade ago, Bush v. Gore, it would be hard to be surprised by anything the "conservatives" on the Court choose to do anymore.

The second passage is closely connected to the first point:
But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

I cannot help but read this passage and recall the recent Sotomayor hearings and the feigned indignation by Senator Sessions and many conservatives about her "wise Latina" remark. Her point was simple and hardly newsworthy: the background of a nominee will shape how s/he decides cases on the bench. I can hardly think of a more benign statement. This is Linda Greenhouse's point, and I wonder whether the conservatives who attacked Justice Sotomayor will likewise attack Ms. Greenhouse. I seriously doubt it.

Finally, Greenhouse writes that "John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own." I wonder whether this is true, in light of Citizens United. Perhaps this is a bad example, since few people understand the arcana of campaign finance law and the way in which the conservatives went about overturning the Austin case. Greenhouse's sentiment does help explain the recent Namudno case, where the Chief Justice avoided a constitutional confrontation with Congress over the Voting Rights Act. If Greenhouse is correct, it may just be that the Voting Rights Act is on safe constitutional ground after all. I have my doubts. Either way, I am more interested in how this argument casts the Chief Justice, as a judicial strategist more interested in his image and that of the Court than in following the exacting demands of the law.

This is exactly how we ought to view federal judges, and conservative judges should not be an exception. Somehow, however, I have a sinking feeling that it will take much more for the conservative canard to fade from view.