How often, in the past month alone, have you heard President Bush and his supporters claim they want judges who “won’t legislate from the bench,” believe in “judicial restraint” and “understand the limited role of the courts”? Influential conservatives say they opposed the nomination of Harriet Miers because she didn’t have a proven record demonstrating these traits. They are ecstatic, they say, because Samuel A. Alito does.
The right’s exuberance over the Miers-Alito switcheroo has made it crystal clear (if it weren’t already) that the innocuous-sounding buzzwords carry a substantial subtext. For movement conservatives they are code for a legal regime, endorsed by role models like Justices Antonin Scalia and Clarence Thomas, that University of Chicago professor Cass Sunstein calls “a political program in legal dress” because of its eerie resemblance to the agenda of the right wing of the Republican Party. If a judge embraces the regime, he or she is called “restrained”; if not, “activist.”
Funny thing, though: The rhetoric defies reality. While they talk about judicial modesty, movement conservatives pursue their goals by advocating legal tactics that are downright immodest. A truly restrained judiciary respects the decisions of prior courts and defers to the decisions of the elected branches of government. Yet movement conservatives want to scuttle precedent, strike down hard-won legislation and render other laws toothless.
Following precedent “is fo’ suckas.” Or so says prolific right-wing blogger Steve Dillard at Southern Appeal. As detailed nearly twenty years ago in reports produced by Edwin Meese’s Justice Department, the right would like to raze what it sees as the law’s accumulated liberal superstructure and rebuild it from the ground up based on their interpretation of the 215-year-old views of those who ratified the Constitution. Overturning Roe v. Wade is just the tip of the iceberg. Sunstein explains–and the Meese reports confirm–that the new arrangement would feature a Constitution that severely restricts the work of federal regulatory agencies like the Securities and Exchange Commission and the National Labor Relations Board; hamstrings federal legislation prohibiting pollution, hazardous working conditions and discrimination; and permits state governments to discriminate against women, ban contraception and regulate private, noncommercial sex between consenting adults.
Movement conservatives admire Justice Thomas even more than Justice Scalia because Thomas does not hesitate to reconsider precedent in pursuit of this throwback regime. They hope Alito follows suit. He’s dropped hints he might, if more gradually. His current colleagues have occasionally noted his efforts to hollow out their court’s own precedents. And although he is a lower-court judge unable to overturn Supreme Court rulings, Alito tried to cut back on high court precedents involving police searches, the right to counsel, abortion rights and church-state separation.
In the past decade, the Supreme Court has struck down parts of more than thirty-five acts of Congress, including laws protecting workers, seniors, people with disabilities, abused women and religious minorities. This amounts to the highest annual invalidation rate ever: No other era comes close. Are “activist liberals” like Ruth Bader Ginsburg and Stephen Breyer leading the way? Not by a long shot. According to a recent study by professor Paul Gerwitz and Chad Golder of Yale Law School, conservative heroes Thomas and Scalia are numbers one and three on the list; Ginsburg and Breyer are at the bottom, trailing far behind.