Judicial Engagement as the New Activism:

Linda Greenhoiuse has a terrific piece in yesterday's opinionator about the conservative campaign for a more activist conservative judiciary.  She quotes from a report from the Institute for Justice, a libertarian group, entitled "Government Unchecked: The False Problem of 'Judicial Activism' and the Need for Judicial Engagement." According to this report, the usual dichotomy between judicial activism and judicial restraint is a false one: 

“Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”

To the Institute, this means that courts are not doing enough.  For example, 

Of the 15, 817 new laws enacted by Congress between 1954 and 2002, the Court only struck down 103 (two thirds of one percent)

Of the 1,006,649 laws enacted by state legislatures, the Court struck down only 452 (less than one twentieth of one percent) 

Of the 21,462 regulations enacted by the federal government between 1986 to 2006, the Court only struck down 121 (half of one percent)

Of the cases it considered between 1954 and 2010, the Court overturned earlier precedents in only two percent of the cases

From these numbers, the authors of the report conclude that "the image of rampant judicial activism is false."  Needless to say, this also means no more rationality review for economic regulations.

I know, I know.  We are all shocked.

I am not sure whether the authors intend for us to take their report seriously.  But I have a few questions: 

Could anyone -- and I do mean anyone -- possibly fall for this? (anyone, that is, other than the two members of the 11th Circuit panel that struck down the individual mandate in State of Florida v. United States Department of Health and Human Services? -- check out page 104).

How long until Senators Sessions and/or Hatch manage to incorporate the term "judicial engagement" into their attacks on progressive judicial nominees?

Is it no longer possible to have a real debate about the role of the courts in democratic society without playing these silly games?

The End of the Second Reconstruction

In her Times column from last week, Linda Greenhouse asked "is anyone watching?" This question was in reference to the looming constitutional debate over the constitutionality of the Voting Rights Act.  She argued -- correctly in my view -- that the Court is gearing up to strike down the special provisions of the VRA.  Yet no one seems to be paying attention. Three issues from her essay caught my attention.

The first is the notion that the Court will not be able to escape ruling on the constitutionality of the act this time around.  In the earlier NAMUDNO case, the court offered an idiosyncratic and novel reading of a key provision of the VRA.  In so doing, the Court was then able to dodge the constitutional question.  According to Greenhouse, however, "[t]here appears to be no convenient off-ramp" in the new case.  But this is not quite right.  For one, there appeared to be no such ramp in NAMUDNO and yet the Court was able to create one.    This is in line with how the Court has historically interpreted the statute.  The Court has essentially used the statute as a jumping off point to do whatever it is the court wants to do with the Act.  NAMUDNO was no different in this regard.  

Furthermore, the way the Court dodged the earlier constitutional challenge has a Bickelian flavor to it, in the sense that the Court was simply looking for a prudential way to set the question aside for the future.  This is to say, the real question is why the Court chose to set aside the issue in NAMUDNO, and not the fact that it did.  In the next case, one can easily see the Court invoke the "passive virtues" to set aside the challenge.  The Court will decide this question when it is good and ready, and not a moment before.

The second issue is one how Greenhouse struck at the heart of the debate over the continued vitality and constitutionality of the VRA.  She put the point the following way: 

The new briefs were submitted last week. Where one side sees sufficient progress to render Section 5 obsolete, the other sees continued racial polarization and strategies that, while not physically keeping black voters from the polls as in the past, serve to dilute impact of black and Latino votes. The two sides remain far apart on which facts about voting patterns are relevant and on how those facts should be weighed. The answers to those questions, almost certainly, will come eventually from the Supreme Court.

I think this is exactly right, up until the last sentence.  This is clearly a question about which both sides disagree, and vehemently so.   The question for us is why the Supreme Court is the one institution that should decide such questions.  I don't have a good answer, and neither does greenhouse.  She simply assumes the answer away, as do most of us.  And that is unfortunate. 

The third issue is one that I have been thinking about for quite some time.  Greenhouse hints at it, though this is more than commentators are often willing to do.  The question is whether we are witnessing the beginning of the end for the Second Reconstruction.  Greenhouse raises this question by way of Justice Scalia's concurring opinion in Ricci v. DeStefano, a Title VII employment discrimination case.  Is the entire civil rights edifice now open to constitutional attack?  I have raised this question in the past, and the answer is usually that these statutes now form part of the fabric of our nation and are safe from constitutional challenge.  They are, in a word, super-statutes.  

Needless to say, we are about to find out if this is so.  I am not optimistic.

Are We Witnessing the End of Justice Kennedy's Role as "Super Median"?

It is an article of faith that Justice Kennedy is the Supreme Court's swing voter, the one justice who controls the Court's important decisions.  Some go as far as to label him a Super Median, because his position on the Court allows him to "exercise significant control over the outcome and content of the Court’s decisions."  On every decision that matters, his vote controls the outcome.  He is "the court's true compass."

Decisions from this past term confuse this conventional picture.  According to Linda Greenhouse, Kennedy is no longer at the center of the Court.  In order to be a true swing vote, Kennedy's vote must be truly available to liberals and conservatives on the Court alike.  This was true on 2007, she writes, a term when Kennedy was in the majority in all 24 decision decided by a 5-4 vote.  Yet this was no longer true this past term.  Concededly, her data set is quite small; all the same, the picture that emerges is one where Kennedy is now part and parcel of the Court's conservative bloc, rather than the Court's enigmatic rudder.  For example, in the 18 cases decided by a 5-4 vote, Kennedy dissented in 5 of them.   The Chief Justice also dissented in five of these cases, while Alito dissented four times, and Scalia and Thomas dissented in three.  This trend leads Greenhouse to conclude that Kennedy is no longer the Court's "center of gravity."


I have three reactions.