Posted by Ilya Somin:
Adam Cohen on "Conservative Judicial Activism":
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184022611
In[1] this column, NY Times reporter Adam Cohen attacks the
"conservative judicial activism" of the Roberts Court. Unfortunately,
Cohen's argument is riddled with flaws and misrepresentations. Here
are his main points:
The [conservative] individuals and groups that have been railing
against judicial activism should be outraged. They are not, though,
because their criticism has always been of �liberal activist
judges.� Now we have conservative ones, who use their judicial
power on behalf of employers who mistreat their workers, tobacco
companies, and whites who do not want to be made to go to school
with blacks.
The most basic charge against activist judges has always been that
they substitute their own views for those of the elected branches.
The court�s conservative majority did just that this term. It
blithely overruled Congress, notably by nullifying a key part of
the McCain-Feingold campaign finance law, a popular law designed to
reduce the role of special-interest money in politics.
It also overturned the policies of federal agencies, which are
supposed to be given special deference because of their expertise.
In a pay-discrimination case, the majority interpreted the Civil
Rights Act of 1964 in a bizarre way that makes it extremely
difficult for many victims of discrimination to prevail. The
majority did not care that the Equal Employment Opportunity
Commission has long interpreted the law in just the opposite way.
The court also eagerly overturned its own precedents. In an
antitrust case, it gave corporations more leeway to collude and
drive up prices by reversing 96-year-old case law. In its ruling
upholding the Partial-Birth Abortion Ban Act, it almost completely
reversed its decision from 2000 on a nearly identical law.
Cohen's argument equates conservative criticism of "judicial activism"
with criticism of striking down laws enacted by elected officials.
That may be Cohen's view, but it is not shared by the vast majority of
conservative jurists and legal scholars. For decades, legal
conservatives have criticized the Court for failing to strike down
what they see as unconstitutional laws, particularly in the areas of
federalism, property rights and (more recently) free speech. Most
conservative (and even more so libertarian) jurists would agree that
failure to strike down unconstitutional laws is no less a departure
from the proper judicial role than judicial overruling of laws that
the Constitution permits. A few judicial conservatives (such as Robert
Bork and University of Texas lawprof Lino Graglia) have called for the
virtual abolition of judicial review; so have a few liberals, such as
Harvard professor [2]Mark Tushnet, and Stanford's Larry Kramer. But
such views are very much in the minority among conservative jurists
and legal scholars - almost as much so as among liberals.
Cohen also implies that conservatives contradict themselves by
supporting "overturning" of the Court's precedents and invalidation of
decisions by federal agencies. Few if any conservative jurists believe
that the Court's precedents are somehow sacrosanct, especially not if
they conflict with the text and original meaning of the Constitution.
That is particularly true of the very recent precedents (McConnell v.
FEC, Stenberg v. Carhart, Grutter v. Bollinger) mentioned in Cohen's
post, all of which were decided within the last few years by narrow
5-4 majorities. Such precedents have failed to gain general acceptance
in the legal community (as their narrow 5-4 margins suggest), and are
too recent to have engendered much in the way of reliance by the
general public. The degree to which the Court should defer to its own
flawed precedents is controversial among conservatives (as it also is
among liberals and libertarians). There is no general conservative
consensus in favor of following wrong precedents, and indeed most
right of center legal scholars tend to the view that flawed precedents
should be overruled, or at least severely constricted. The same points
apply to flawed decisions by federal agencies. It is also worth noting
that the Court did not in fact "overturn" the precedents Cohen
discusses, but merely limited the scope of their application. Perhaps
Cohen means to say that they have been so severely limited as to
virtually overturn them. If so, he needs to provide an argument
justifying this far from obvious conclusion instead of a bald and
misleading assertion.
Cohen also contradicts himself on these issues. If judicial
conservatives are supposed to applaud judicial restraint in overruling
laws enacted by legislatures, why shouldn't they support the
overruling of precedents that themselves struck down legislative
enactments (as was true of Roe v. Wade and Stenberg v. Carhart)? Yet
Cohen criticizes conservatives as inconsistent for supporting the
Court's partial retreat from Stenberg in Gonzales v. Carhart.
Finally, Cohen commits an egregious factual error in claiming that the
Supreme Court conservatives ruled in its school affirmative action
decisions that the Constitution "protects society from integration."
As Cohen surely knows, the Court merely ruled that the Constitution
forbids some types of racial assignment of students. In no way did the
justices claim that "integration" is itself unconstitutional -
especially if it is achieved by racially neutral policies.
There are plenty of legitimate ways to criticize the Roberts Court
conservatives' recent handiwork. I have taken issue with them on some
important points myself (.e.g. - [3]here). Cohen's critique, however,
fails to rise above poorly substantiated name-calling.
References
1. http://www.nytimes.com/2007/07/09/opinion/09mon4.html
2. http://press.princeton.edu/titles/6634.html
3. http://volokh.com/archives/archive_2007_06_24-2007_06_30.shtml#1183007597
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