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.
Paradoxically, the self-proclaimed apostles of judicial restraint have jumped on the Court’s Congress-dissing bandwagon. Seriously dismayed that three recent decisions slowed the bandwagon considerably by upholding the constitutionality of applications of the Family and Medical Leave Act, the Americans With Disabilities Act and the Controlled Substances Act, they are confident that Alito, unlike Miers, will get it rolling again.
Many legal scholars believe they are right. In 1996 Alito wrote a dissent invalidating the federal law banning machine gun possession, saying it exceeded Congress’s authority under the Commerce Clause, the constitutional underpinning for numerous landmark statutes regulating everything from pollution to discrimination to the minimum wage. Alito’s reasoning was not only rejected by his own colleagues but had previously been rejected by all of the other appeals courts that considered the law in the wake of a key 1995 Supreme Court decision. Every court to have looked at the law since Alito has done the same, except one, and the Supreme Court recently vacated that decision after handing down a ruling that essentially scotched Alito’s cramped view of Congress’s lawmaking authority.
Even if laws cannot be invalidated as unconstitutional, they can nevertheless be defanged. Movement conservatives have favored such defanging, devising ways to diminish or eradicate the courts’ ability to remedy violations of federal protections. The effort usually requires undermining Congress’s intentions.
Alito provides some examples. In one environmental case, he sided with the 2-to-1 majority of an all-Republican-appointed three-judge panel to make it harder than Congress intended for citizens to establish standing to sue under the Clean Water Act, voting to wipe out a $2.6 million fine against a company that violated its discharge permit 150 times. Three years later, the Supreme Court rejected Alito’s view by a 7-to-2 vote.
Alito also issued dissents trying to make it unreasonably difficult to prove claims of job discrimination. In one case, his colleagues asserted that antidiscrimination statutes “would be eviscerated if our analysis were to halt where [Alito’s] dissent suggests.” In another, he was the lone dissenter among eleven judges who voted to throw out a jury verdict favoring a worker alleging gender discrimination.
Despite the judicial engineering they advocate, movement conservatives arrogantly continue to invoke the rhetoric of judicial restraint to insist that they–and only they–speak neutrally for the law while the rest of us prefer lawless, antidemocratic courts. It is a false conceit. Just listen to former Republican Senator John Danforth, who served briefly as the Bush Administration’s ambassador to the United Nations. On October 27 Danforth told CNN that the conservatives who sank the Miers nomination “want a political judge. They want a judicial activist. This business about judicial conservatism and somebody who decides the law, that’s baloney.”
The White House’s capitulation to movement conservatives on the Miers and Alito nominations may have been unsightly. But by exposing the emptiness of the right’s rhetoric, perhaps it will have the salutary effect of producing an honest–and uncoded–national discussion about the role of the courts. The Alito hearings present an opportunity for such a discussion. Will senators who reject the right’s program seize the opportunity and offer their own cogent vision of the law? It’s still too early to tell.
But they should.