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A little
historical perspective on a significant moment that is approaching the stature
of the War of Roses. kwc Role Reversal and the High Court Commentary by Prof. Cass R.
Sunstein, Washington Post, Sunday, July 10, 2005; B07 Debates about the
Supreme Court have become eerily reminiscent of those a half-century ago.
Having acquired power, conservatives are showing the same high ambitions as
liberals did in the court's most pivotal period. In the 1930s liberals despised the exercise of judicial
power. For over two decades, an activist Supreme Court had proved an obstacle
to progressive legislation, including laws covering minimum wages, maximum
hours and child labor. Much of Franklin D. Roosevelt's New Deal was in
constitutional jeopardy. Led by professor Felix
Frankfurter and Attorney General Robert Jackson, liberals argued for judicial
restraint. They contended the Supreme Court should not seize on ambiguous
constitutional provisions to strike down legislation. They objected that the
federal judiciary was engaged in politics, not law. They argued that the
Constitution should not be interpreted to entrench political commitments. In the late 1930s the
Supreme Court capitulated to their arguments. Roosevelt appointed to the court
Frankfurter and Jackson, apostles of restraint who now rank among the Supreme
Court's giants. Roosevelt also appointed Sen. Hugo Black and professor William
O. Douglas, who happily joined Frankfurter and Jackson in approving progressive
legislation. But by the late 1940s
a deep fissure had developed among liberal activists and Roosevelt's most
distinguished appointees. Liberals started to turn to the courts to protect
civil rights and civil liberties. Frankfurter and Jackson often rejected their
pleas and adhered to restraint. Black and Douglas, however, were far more
sympathetic. They argued for near-absolute protection of freedom of speech --
an argument that Frankfurter and Jackson ferociously resisted. To Frankfurter's
dismay, Black led the mostly successful effort to rule that the entire Bill of
Rights applied to the states. Black and Douglas helped spur the court to strike
down racial segregation and miscegenation laws. By the early 1970s few
liberals believed in judicial restraint. Frankfurter and Jackson seemed
betrayers of the liberal cause. Black and Douglas were heroes, "movement judges" alongside Earl Warren, William Brennan
and Thurgood Marshall, eager to use judicial power for liberal ends. Some
people seemed to think the Constitution should be interpreted to fit the views
of the Democratic Party's extreme wing -- as in the suggestion, made seriously,
that the Constitution created rights to welfare, food, housing and even
employment. Conservatives started
to sound like New Deal liberals. President Richard Nixon argued that the courts
should back off. Attacking ambitious desegregation plans and decisions
protecting criminal defendants, he insisted that the Supreme Court should
respect the judgments of the elected branches. President Ronald Reagan spoke in
similar terms. Two of Reagan's
appointees, Sandra Day O'Connor and Anthony Kennedy, played a role closely akin
to that of Frankfurter and Jackson. They showed little enthusiasm for the
liberal rulings that preceded them. But they were skeptical of using the
Constitution to promote conservative goals. They were not "movement
judges." Republican appointees
William Rehnquist, Antonin Scalia and Clarence Thomas have been far more
ambitious. Like Black and Douglas, they have been willing stand against the
elected branches of government. They want to restrict Congress's power,
heighten the protection given property rights and strike down most affirmative
action programs and campaign finance restrictions. Among many
conservatives, O'Connor and Kennedy are now seen as infidels. Like their
liberal counterparts in the 1970s, conservative activists show no interest in
judicial restraint. Some conservatives argue that the Constitution should be
interpreted to invalidate key provisions of the Clean Air and Occupational
Health and Safety acts, to strike down restrictions on commercial advertising
and to eliminate the Federal Communications Commission in its current form. If
they can appoint judges who will entrench views of the Republican Party's most
extreme elements, well, so much the better. To be sure, there are
differences between the liberal shift in the mid-20th century and the more
recent movement in conservative thought. Conservatives have a distinctive
theory for interpreting the Constitution. They believe in the "original
understanding" of the document, and they aim to recover what they
sometimes call the Lost
Constitution
or the Constitution in
Exile. The liberal activists
of the 1970s usually made no pretense to rediscovery. But it would be a neat
coincidence if the original understanding of the Constitution matched the views
of the GOP's extreme wing. As it happens, there is no such match. Nothing in the
original understanding justifies the movement to strike down affirmative action
programs, to eliminate the FCC or to protect property rights against
environmental regulations that diminish the value of property. What lessons can be
drawn? People will use power when they have it -- and when a particular side
controls the courts, the idea of judicial restraint will go out the window. But history is full of surprises, and
America's institutions have a way of defeating cynics. Frankfurter and Jackson,
reviled by their political allies, devoted their careers to rejecting the
cynical conclusion. Will they ultimately be vindicated? The jury is still out. The
writer is a professor at the University of Chicago Law School and author of
"Radicals in Robes: Why Extreme
Right-Wing Courts Are Wrong for America," to be published in
September. http://www.washingtonpost.com/wp-dyn/content/article/2005/07/08/AR2005070801688.html |
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