Bench Memos

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Ramesh and the NYT


I’m a little late to the table in the Ramesh-fest, but . . .

I second Abby Thernstrom’s admiration for Ramesh and admit that is precisely why I was mystified that he would willingly jump into the whirlpool of White House Spin on the eve of the Ricci decision and the run-up to the Sotomayor hearings.  Honestly, when I read his column yesterday, I thought he must have been taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece.

Of course the principle in the Constitution — both the 14th and 15th Amendments, not to mention the Declaration of Independence — is one of color-blindness, as the first Justice Harlan noted in Plessy.

There is nothing in the original meaning of the text that mandates race-conscious (i.e., racially discriminatory) policies, except perhaps in the limited context of remedying obvious race discrimination.

The authors and ratifiers of the 15th Amendment gave Congress the power to ”enforce” it by “appropriate legislation,” but not power beyond that, so that is the whole point about judicial review of the Voting Rights Act.  If legislation to “enforce” the 15th Amendment is not (or is no longer) appropriate, then it is a proper exercise of judicial review to strike it down.  Upholding the Constitution (its text, principles, and/or history) is never judicial activism.  That is both consistent with originalism and judicial restraint.

Judicial restraint is not ”best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.”  That is a different canon, the canon of avoidance of unecessary constitutional questions.  If a constitutional question is legitimately raised, it is not any kind of “virtue,” least of all “judicial restraint,” to fail to decide it.  Judicial activism is when judges use extra-legal arguments, authorities, personal preferences, or experiences to decide cases, instead of the law.  

To the extent Ramesh says it is “not clear that the Constitution authorizes judges to second-guess” either the Voting Rights Act or other legislation, he sounds like he is questioning the premise of Marbury, which is not only the power of judicial review, but also the corresponding responsibility of judicial restraint.  These are two sides on one coin, inseparable if the judicial branch is to uphold the Constitution properly (as, of course, all the departments and not just the judiciary must do).  As the song goes, “You can’t have one without the other.”

Attacking Justice Thomas on this score as a judicial activist is just incomprehensible, particularly coming from Ramesh.

And with respect to Ramesh’s assertion that the “conservative” position on the merits of the Ricci case (not only that he “probably deserved his promotion and had a right to his day in court” but also that on the merits he “should win the case”) is another example of judicial activism and/or abandonment of originalism is equally incomprehensible.  If you accept the originalist position that the Constitution is indeed color-blind (and you should), then Title VII disparate-impact imperatives that would compel facial race discrimination don’t cut it, in an originalist sense.

Perhaps most important, Ramesh’s entire premise, that Justice Thomas and conservatives are deciding cases and making legal arguments based upon the Obama empathy standard, is just so wrong and so misleading at the precise moment when we need to seize the moment to crystallize this debate between the Obama-Sotomayor view of judging and the Thomas-judicial restraint mode of judging.  The White House is trying to fog up that debate, to blur the distinctions and confuse the citizens with double-talk so they can’t decide for themselves which mode of judging they prefer.  To feed the fog machine is doing a disservice to those people.


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