A Word on the Supreme Court and the Old "Strict Constructionism" Canard

As the U.S. Supreme Court readies itself to decide major cases about Obama's health care law, Arizona's notorious immigration law, and the constitutionality of the Voting Rights Act, a recent editorial in the New York Times focuses needed attention on the connection between the Supreme Court and mainstream politics.  According to the Times:

Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.

This is not a new story, not by any means, but its lessons are worth remembering: just as the law thrusts itself into politics, it is also true that "politics shape the court." 

This is an important reminder, especially in an election year, when conservative candidates will undoubtedly intensify their promises to nominate "strict constructionists."  The hypocrisy is palpable; judicial activism knows no one party or ideology.  But one thing is true: conservatives have skillfully managed to set the terms of the debate.  This means that a decision striking down the VRA, for example, would be seen in conservative quarters as a triumph of our new federalism, not as an activist response to the work of Congress; yet a decision upholding the health care law would similarly be seen as a constitutional failure to uphold federalist principles.  This is clearly nonsense.  

I am not sure what it will take to alter the terms of the debate.  But we should not stop trying. 

Thinking about Activism, Judicial and Otherwise

An article in yesterday's New York Times pitted President Obama and Chief Justice Roberts as "two intellectual gladiators in a great struggle over the role of government in American society."

Without intending to do so, this Article highlights the many problems facing progressives in the world of American politics.

Three things in particular caught my attention. First, the framing of the article itself puts progressives in a situation they cannot win. It is Obama, the President and author of "Obamacare" and everything that is wrong in the world of politics inside the Beltway, against the Chief Justice of the Supreme Court. I wonder who is going to win that battle in the court of public opinion.

This point is directly related to the second. In the article itself, Obama is labeled "an activist president." I think the label is partly right, especially in the wake of the landmark health care legislation. But the label is also partly wrong. Obama may be an activist, but he certainly is not the activist that progressives might prefer. Think in this vein of the health care bill itself and its lack of a public option. Think also of the recent debacle over the failed nomination of my colleague Dawn Johnsen to lead the Office of Legal Counsel, or the direction of Obama's foreign policy. If this is a liberal President, and an activist President at that, I cannot imagine what a moderate president would look like.

The third point follows as well. This is a point about judicial nominations. From the article:

the search for a replacement for the retiring Justice John Paul Stevens is centered on finding a justice who will not just replicate his liberal votes but also bring intellectual heft and powers of persuasion to the court to win the swing vote of Justice Anthony M. Kennedy, according to people close to the search who insisted on anonymity to discuss it. While activists on the left often say they want a liberal Antonin Scalia, the fiery conservative justice, Mr. Obama is looking for a liberal John Roberts, who can forge a five-vote majority rather than write satisfying but ultimately meaningless dissents.

There is so much wrong with this passage that I don't even know where to begin. Obama wants a "liberal" with "intellectual heft" yet also with "powers of persuasion" to seduce meek Justice Kennedy to our side. This is troubling enough; yet more troubling still is the idea that the Chief Justice is a consensus builder, a conservative justice willing and able to forge compromise and bring the needed justices to his side. To be sure, this is what the Chief Justice preached during his confirmation hearings and soon after joining the Court. This is not the Chief Justice we have come to know.

The larger point is this: labels matter, and in the public imagination, Obama is a liberal, and so is Justice Stevens, Breyer, and even Sotomayor. In contrast, Thomas, Scalia and the Chief Justice are conservative justices , "classical judicial jurists" who follow the law and do not try to make anew. This is clearly a hoax, a myth carefully created and nurtured by very smart people who clearly know what's at stake.

Move ahead to the upcoming Supreme Court nomination in order to make sense of all of this. In the last go around, Obama nominated a moderate judge yet conservatives assailed her as a liberal activist and 31 senators voted against her. The next nomination will be along similar lines and senators will criticize it all the same. Right then and there you know that the conservative movement and its construction of reality is winning, by a wide margin. A Republican president nominates Justice Alito and Chief Justice Roberts, and Senate Republicans are able to confirm them. Why is it that Democrats cannot do the same? Why is it that Professor Pam Karlan, as distinguished and credentialed an academic as you will find, is not nominated, but a moderate, even conservative Elena Kagan might be?

Here is everything you need to know: five years ago, two of the four "liberals" on the Court were nominated by Republican presidents. What does that tell you about the Court's ideological drift in the last generation? This reminds me of Justice Stevens' dissent in Parents Concerned, the Seattle school case, where he wrote that "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." Of course not. This is not the same Supreme Court we are discussing. This is an activist Supreme Court, especially on matters about which the conservatives care deeply. All the while, the general public continues to believe that it is a conservative Court, and the press continue to perpetuate the myth of its conservatism.

As I stated at the onset, this is the problem confronting progressives at the moment. It is quite a challenge.