Bench Memos

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The Excellent Ramesh Nods (Big Time)


Alas, our own Ramesh Ponnuru — in an ill-timed, ill-argued op-ed today in The New York Times, of all places — argues that conservatives urged judicial activism in the Northwest Austin and New Haven firefighter cases before the Supreme Court this term. In the former, conservatives urged the Court to strike down as unconstitutional Section 5 of the Voting Rights Act; in the latter, conservatives urged the Court to rule that the constitutional and statutory rights of 20 nonblack firefighters were violated when, because of their skin color, they were denied promotions they had earned by their test scores.

Judicial activism is a court’s substitution of its own policy preferences for what the text of the Constitution (or other law) actually says. The classic instance involves making up a limitation on a legislature that does not actually exist in the Constitution, but it also includes ignoring a limitation that actually does exist in the Constitution.

The problem with Section 5 of the Voting Rights Act is that it prohibits many state actions that are not unconstitutional (since it employs an “effects” test, and the Fifteenth Amendment prohibits only disparate treatment — actions taken “on account of race”). Indeed, its principal use these days is to require states to engage in disparate treatment, namely the racial segregation of voting districts by racial gerrymandering. In addition, Section 5 supplants state authority in matters committed by the Constitution to them and substitutes federal judicial and bureaucratic supervision instead (this could be justified if necessary to stop states from violating the Constitution, but as just noted Section 5 goes way beyond that). Finally, Section 5 applies to some states and not others, without any existing factual basis for doing so, which is likewise inconsistent with the Constitution’s federalist structure.

So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text, and would not be judicial activism; upholding it would mean ignoring constitutional text, and would be judicial activism.

Ramesh suggests that the Court cannot legitimately conclude that Section 5 might once have been constitutional but, because of changes in the facts, isn’t any longer, because such fact-finding is up to Congress. But courts determine facts all the time, and changes in factual circumstances may mean that what once met an — unchanging — constitutional standard no longer does.

Thus, if a policeman asks a judge for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, then he will get it. That’s not judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

The text of the Fifteenth Amendment says that legislation passed by Congress to enforce it is to be “appropriate.” There is nothing in the text to suggest that Congress intended to insulate such legislation from judicial review.

The New Haven case involves both constitutional and statutory claims; Ramesh ignores the latter. If judicial activism had not ignored the plain text of the Civil Rights Act of 1964, “reverse discrimination” in employment and university admissions, among other places, would long ago have ended (with no need to decide on their constitutionality, by the way).

The text of Title VII is all about telling employers that they must ignore race and ethnicity in their treatment of employees. The statute also says repeatedly that testing is fine and that nothing in it requires racial or ethnic balancing. And, of course, it applies to all forms of discrimination, politically correct and otherwise.  Ignoring this text because a judge doesn’t like it is judicial activism.

The counterargument seizes on one subsection of Title VII, which makes it possible for employers to be sued if they use a selection device that has a significant “disparate impact” on the basis of race or ethnicity, unless that device is “job related for the position in question and consistent with business necessity.” But it is intellectually dishonest to seize upon a relatively small part of Title VII and read it in a way that swallows the antidiscrimination focus of the overwhelming bulk of the statutory scheme. 

Such a reading not only undermines Title VII, but also the Constitution, which forbids government employers from denying “the equal protection of the laws.” There is nothing in the Constitution’s text that suggests an exception when the discrimination is of a politically correct variety. Do you think that the Constitution would have permitted the city to throw out the test results if it didn’t want to promote African Americans, Ramesh? If not, then you have to show me where in the Constitution’s text it says that white people have different constitutional rights than black people. I doubt you’ll find such a provision; to the contrary, what the Constitution guarantees is, again, precisely “the equal protection of the laws.”

There are some instances where conservatives have urged judicial activism, Ramesh, but not in these two cases. In my view, it is our opponents in them who urge activism; in any event, the results that conservatives urge are consistent with a proper judicial role.


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