Who are the 'Activist’ Justices?

The Supreme Court nomination process is upon us and once again the phrase “judicial activist” is the legend emblazoned on the conservative activists’ banner as they go into battle against one of President Obama’s nominees.

Even prominent conservative jurists and scholars have emphasized that the term is simply used by conservatives or liberals to denounce decisions they do not like or is merely a “synonym for bad decisions.” ( Frank Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism, 73 U. of Colo L. Rev. 1401, 1402 (2002);Charlie Savage, Uncertain Evidence for Activist Label on Sotomayor, N.Y. Times, June 20, 2009, at A10, quoting conservative scholar Professor Richard Epstein.) But this has not discouraged conservatives like Senator Jeff Sessions, ranking Republican member of the Senate Judiciary Committee.

A few days before President Obama announced his nomination of Solicitor General Elena Kagan to the Supreme Court, Senator Sessions published an op ed in the Washington Post entitled “The Founders’ High Court”(Washington Post, May 7, 2010, A25). Anticipating the President’s imminent announcement of his nominee, Senator Sessions asked whether President Obama would choose “someone who is committed to the text of the Constitution and the vision of the Founding Fathers, or whether his nominee is an activist who will shed a judge’s neutral, constitutional role to push a progressive policy agenda.” As one would suspect this was a purely rhetorical question, with a foregone answer for Senator Sessions. Focusing on one of the President’s several criteria for a nominee—“a keen understanding of how the law affects the daily lives of the American people”—Senator Sessions maintained that this was a formula for appointing activist Justices. Senator Sessions claimed that, instead, the “American people are looking for judges in the mold of Chief Justice Roberts, not Justice John Paul Stevens…[J]udges who will stay true to our Founders’ vision instead of imposing their own, who recognize the limits on government power; who restrain themselves to the text of the Constitution; and who will defend the rights of all citizens without bias…”

To prove that conservative jurists like Chief Justice Roberts fit that mold, while progressive jurists like Justice Stevens were “activists” who did not, Senator Sessions contrasted these justices’ positions in three recent cases: Citizens United, applying the First Amendment to invalidate Congress’ restrictions on corporate spending in election campaigns; Heller, finding a Second Amendment right to bear arms to strike down the District of Columbia’s gun control ordinance; and Kelo, finding that New London’s use of eminent domain to enlist private developers and businesses in its urban renewal efforts was a public purpose and not a violation of the “takings” clause.

These cases indeed show sharp contrasts, but not those that Senator Sessions draws. They also show how slippery the term “activist” is and how those who live by that term can be humbled by it.

Let us begin with Citizens United. Senator Sessions says the decision is “grounded in the plain words of the First amendment: ‘Congress shall make no law…abridging the freedom of speech.’” But our long First Amendment jurisprudence makes it clear that these words have anything but a “plain meaning”—consider, for example, the tortuous path of criminal advocacy or obscenity laws or restrictions on student speech that literally abridge speech. In any event, it is hardly “plain” that the First Amendment’s words were meant by the Founders to protect rights of corporations—artificial creatures of state law—to spend vast sums of other people’s money to drown out the views of individual American citizens. The Founders could not have dreamed of the role of money in current election campaigns where corporate wealth monopolizes the market place of ideas. Had they done so, given their solicitude for the individual, it is most likely they would have concluded that Congress’ restrictions on corporate campaign financing foster speech, not “abridge” it.

To reach a contrary result, the Chief Justice and the other conservative justices overturned two precedents, disregarded more than a century of Supreme Court jurisprudence recognizing the need to regulate corporate election spending, overrode Congress’ greater competence to assess the impact of corporate money on election speech and reached a constitutional issue that the parties themselves did not require them to address. Further, while Senator Sessions considers “absurd” the assertions that the decision reflects a bias for big business, the conservative majority did not limit its ruling to small businesses or nonprofits or to the limited facts presented by this case, as urged by Justice Stevens’ dissent. Instead they struck down Congress’ law on its face, so that its principal beneficiaries are the biggest corporations with the most money to spend.

The second illustrative case offered by Senator Sessions, Heller, teaches similar lessons. To create an individual right to bear arms, Justice Scalia’s majority opinion simply nullified the Second Amendment’s opening clause: “A well regulated militia being necessary to the security of a free state…” Moreover, while Justice Scalia purported to find the “original meaning” of the Amendment based on his reading of history, as the eminent conservative jurist and scholar Judge Richard Posner explains Justice Scalia selectively and misleadingly used that history to incorrectly derive an “original meaning” which was more accurately reflected in Justice Stevens’ dissent. (Richard A. Posner, In Defense of Looseness, The New Republic, 8/27/08, at 35; see also the same charge against Justice Scalia made by another conservative jurist, Judge Harvie Wilkinson III, in Of Guns, Abortions and the Unraveling of the Rule of Law, 95 Va.L.Rev. 253, 256–57 (2009)) The result of this decision will allow federal courts to dictate not only what the District of Columbia but—as seems likely from the oral argument in the pending Chicago gun law case—all state and local governments can do to protect Americans from the devastating gun violence in their communities. And while Senator Sessions boasts that the decision protects the rights of individual gun owners, it threatens the safety of many more Americans.

As for Kelo, Justice Stevens’ majority opinion merely recognizes that the Constitution does not impose a straight jacket on how cities can address their needs for urban renewal, leaving it to state and local democratic processes to decide on the limits. And many have since taken up that invitation.

In each of these cases, “progressive” justices left it to the democratic process to allow American citizens through their elected representatives to decide how to address vital issues affecting their lives, where the Court was not required to impose its views by text, history, precedent, or the issues presented by the parties, or by any need to protect the rights of vulnerable minorities lacking access to the political process. In these cases, as in others, it was “conservative” Justices who interfered with the democratic process to impose their conservative ideologies by twisting constitutional text and history, disregarding precedent, overriding the will of the people acting through their elected representatives, reaching out for issues it need not have decided—and yes, lacking any concern for the impact of their readings on the lives of the vast majority of the American people.

So, Senator Sessions, who are the “activist” judges?