Politics & Policy

Viewing The Bench

Constitutional principle for conservatives.

Despite a few narrow victories, the administration is faring poorly in the war of attrition over its judicial nominees. GOP protests about Democratic obstructionism and a growing number of filibusters have manifestly failed to resonate beyond the Beltway. However legitimate, procedural complaints are no substitute for a substantive theme or agenda that would generate public support for the administration’s nominees.

The Democrats, of course, have a theme. While the contours of each battle depend on the individual nominee’s vulnerabilities (as defined by Ralph Neas), the Democrats’ consistent refrain is “conservative judicial activism” — as evidenced by the Rehnquist Court’s perceived contempt for precedent and the democratic process.

Repeated often enough, unanswered charges will eventually take their toll — especially when, as here, they have a veneer of plausibility. At some point, the GOP must pick and win a nomination fight over substance, not merely procedure. To that end, Republicans must recognize, and emphasize, that judicial “activism” is a constitutional question, not a matter of judicial style.

A judicial debate on constitutional terrain — where the GOP has not trod in decades — will severely tax the party’s political acumen and courage. But Republicans have no other choice.


Liberals have come a long way, from rallying for a “living Constitution” to denouncing judicial activism. Their about-face began at the end of the Clinton era, in response to the Rehnquist Court’s federalism decisions. In May 2000, for example, the Court held that a portion of the federal Violence Against Women Act exceeded the powers of Congress. “Who do these people think they are?” Sen. Joseph Biden, the act’s chief sponsor, foamed at the justices.

The Democratic party, liberal advocacy groups, and their legions of supporters in academia and in the media have since warmed to the theme. The Senate Judiciary Committee has held hearings on what then-chairman Patrick Leahy described as the Rehnquist Court’s “judicial activism of the most dangerous, anti-democratic kind.” Dire warnings of a return to an “antebellum jurisprudence” and to the Articles of Confederation have been issued by Laurence Tribe, Cass Sunstein, Jeffrey Rosen, and Linda Greenhouse, among others.

The liberals’ conversion gained momentum after the 2000 presidential election. Bush v. Gore gave Democrats a taste of the bitter sense of disenfranchisement previously reserved for right-to-lifers and other “red state” constituencies. A Bush presidency also meant that the Supreme Court and the federal appellate courts would become more conservative; accordingly, liberals now see it as their first priority to preserve the legacy of the Brennan era, through adherence to precedent. Roe v. Wade is the central precedent, but far from the only one.

The most meaningful definition of judicial activism is “a departure from the text, structure, and logic of the Constitution.” By that standard, the liberal posture — which couples hysterical denunciations of the Rehnquist Court’s federalism with a continued insistence on Roe v. Wade as a judicial litmus test — is fundamentally incoherent. In a sense, liberals no longer know whose side they’re on. Alas, that is also true of conservatives — except more so.

The GOP’s predominant response has been indignation at the Democrats’ shameless theft of an anti-activist slogan that had served Republicans (albeit not very well) for over a generation. Paired with that indignation has been the steadfast incantation of a “judicial restraint” formula that long ago stopped being useful. President Bush, for example, has professed his intent to nominate “strict constructionists” — and has held out Antonin Scalia and Clarence Thomas as model jurists. That, they are. But they are not strict constructionists. (Scalia has publicly disavowed the label.)

The continued currency of “judicial restraint” slogans in GOP circles reflects a dismaying lack of intellectual mobility. In fairness, though, a more usable theme is not easy to come by. A principal reason is the Rehnquist Court.


Activist Supreme Courts — the Marshall Court, the Lochner Court, and the Warren-Brennan Court — have typically enacted the agenda of identifiable political constituencies and, usually, of a political party. The politics have varied: The Lochner Court curtailed the Democratic party’s program, while the Brennan Court promoted it. But the identification was close in each case, which gave the “activism” charges of those eras their plausibility.

More important, the convergence of judicial posture and partisan interest gave the Court’s political supporters a potent reason to paint “activism” charges as an attack on the judiciary’s institutional independence. The Rehnquist Court, in contrast, has given conservative constituencies little reason to take that tack.

The Court has worked only two constitutional shifts. First, it has gradually moved from a “no government aid to religion” interpretation of the Establishment Clause to the view that the Constitution commands government neutrality among religions, and between religion and non-religion. Second, the Rehnquist Court has resurrected federalism as a judicially enforceable constitutional principle. While both innovations are “conservative” in the sense of being the work of moderate-to-conservative justices, their actual political effects are ambiguous.

The religious-neutrality baseline has permitted the inclusion of religious parents and institutions in government-sponsored school-choice programs — a high-ranking item on the conservative agenda. But the Rehnquist Court has adhered to the neutrality baseline even when the outcome was unfavorable to conservative and religious constituencies, notably by invalidating the federal Religious Freedom Restoration Act. Similarly, the Supreme Court’s federalism does not always and immediately favor conservative constituencies (certainly not big business, which detests federalism). Its principal beneficiaries have been state and local governments, which are bipartisan; and criminal defendants — who make up a constituency, but not a conservative one. Conversely, judicially enforced federalism guarantees are often useful for liberal constituencies. For example, the Court’s decisions probably mean that the national government may not criminalize the mere possession of marijuana.

So the Rehnquist Court has done little to mobilize conservative constituencies for a defense of its institutional prerogatives. It has in fact done quite a bit to dispirit them, through its lamentable adherence to — and occasional extension of — Brennan-era precedents. The principal theme of those precedents is the assertion of invented constitutional rights — in short, judicial imperialism. So long as those decisions remain on the books, conservatives cannot mount a full-throated defense of the Rehnquist Court. In fact, they may gain more from discrediting the Court than from defending it.


What, then, does the GOP think of the Rehnquist Court, and what does it expect of its judicial nominees? The most compelling response is that the GOP stands for, and expects of its nominees, a commitment to democratic, decentralized government — and that judicial “activism” in pursuit of that constitutional arrangement is no vice. The Democrats stand for unlimited national power. The pursuit of that ideology — by judges or, for that matter, by legislators — is a vice. This stance would refocus attention on constitutional substance, and would be broadly consistent with the GOP’s long-term interests and agenda. It would also yield an effective response to the liberal-activism charge, and make possible an accurate assessment of the Rehnquist Court’s record.

The central point of the liberals’ charges of activism is the Rehnquist Court’s challenge to the central institution par excellence: Congress. In invalidating congressional enactments on federalism grounds, liberals say, the Rehnquist Court has launched an unprecedented assault on democratic government. The critics charge that even the Warren Court did not invalidate federal statutes with such regularity. The liberal account of the Warren Court is technically accurate, but misleading (that Court specialized in trampling on the states). The account of the Rehnquist Court is almost entirely false.

During Chief Justice Rehnquist’s tenure, the Supreme Court has issued 36 decisions holding portions of federal statutes to be unconstitutional. Only eleven of those cases implicate federalism, compared to 15 First Amendment decisions. If that count supports an activism debate about the Court’s federalism, it just as easily supports a debate about a judicial “First Amendment rampage.”

On closer inspection, the Rehnquist Court has tended to aim its federalism fire at symbolic federal enactments, which resemble congressional press releases more than serious operational statutes — the Gun-Free School Zones Act, for example, or the Violence Against Women Act. First Amendment decisions, by contrast, have affected statutes of intense interest to regulated industries (such as the telecom sector) and to the general public. Similarly, most of the Rehnquist Court’s states’ rights decisions do not “strike down” anything at all, but merely bar private plaintiffs from enforcing federal statutes by suing for money. Those plaintiffs, as well as the federal government itself, can still enforce those same statutes by suing for injunctions.

Further, federalism decisions are far less anti-democratic than individual-rights decisions. Judicial decisions that expand individual constitutional rights terminate democratic debate and decision-making at all levels of government. Federalism decisions hold at most that the national government may not pursue a particular objective; states are still free to do so. In fact, limitations on national power invite public debate and politicking in the states, and state-level decisions often reflect varying popular sentiments and preferences more accurately than a uniform national rule. In these important respects, constitutional limitations on congressional power promote democratic government.

The Rehnquist Court has issued its fair share of activist decisions. But they are precisely not federalism decisions. For what it’s worth, they are also not conservative decisions. Rather, they are ruthlessly centralizing precedents that, through expanding judicial interpretations of individual rights, drastically curtail state and local autonomy.

The Rehnquist Court has invalidated state laws in well over 70 cases. While most of those decisions are probably right, the Court’s lapses into extra-constitutional imperialism are sufficiently common to warrant a serious debate about judicial activism. From Roe v. Wade — in itself more profoundly anti-democratic than the Rehnquist Court’s entire federalism corpus — that debate might move on to Planned Parenthood v. Casey and Stenberg v. Carhart, the two decisions that affirmed Roe. It might also consider Romer v. Evans — which, in invalidating a Colorado referendum barring local gay-rights ordinances, very nearly held that democracy is unconstitutional.

The liberal converts to “judicial restraint” insist on adherence to precedent. Anything else, they say, is “activism.” But the shoe is on the other foot. A decision that elevates judicial power over republican government without a constitutional warrant is plainly activist. A decision to reverse that precedent is the opposite. Such a reversal might be termed “activist” in the trivial sense that it involves a change in the status quo. But the Supreme Court must on appropriate occasions overrule its own precedents. A consistent failure to do so would signal that the Supreme Court considered its own edicts, rather than the Constitution itself, to be the supreme law of the land.


In response to the Democrats’ “activism” drumbeat, the administration has insisted on its nominees’ declared willingness to follow Supreme Court precedent. Even the purveyors of that defense surely understand, though, that appellate judges enjoy enormous latitude and, in virtually all cases, operate as final decision-makers. (The Supreme Court operates as an absentee landlord.) Besides, what is a future Supreme Court nominee to say along these lines — that (as John Ashcroft conceded while fighting for his appointment as attorney general) Roe is “settled law”?

Already, the retreat to the familiar terrain of judicial restraint and precedent is failing even for appellate nominees — the filibustered Priscilla Owen, for example, who earned her “activist” reputation through a few of her opinions as a justice on the Texas Supreme Court. It will prove wholly incongruous in the case of Alabama attorney general Bill Pryor, nominated for a seat on the Eleventh Circuit.

In the words of liberal activist Nan Aron, Pryor has done “something to offend virtually every constituency in the country,” by which she means every liberal interest group (including trial lawyers). In the face of a coming assault that will make the Estrada, Pickering, or Owen nominations look like child’s play, the administration appears to have muzzled Bill Pryor — and has said not much more on his behalf than that he will “apply the law.”

That, he will — as would hundreds of less distinguished (and controversial) jurists. But the reason for the nomination, and the focal point of the liberals’ wrath, is Pryor’s role as a leading advocate for federalism and limited national government. Though liberals have unleashed the usual torrent of scurrilous allegations against Pryor, Ralph Neas’s shrill protest that Pryor is an “aggressive advocate” for enumerated powers is not a calumny. It is a fact.

As a Supreme Court advocate, attorney general, law-review author, and occasional columnist, Bill Pryor has done more than anyone to propagate and promote a federalist renewal. He cannot and will not run from his record. What Pryor (who is an exceptionally persuasive and telegenic advocate) can do is to explain and defend his constitutional vision. Let him do so, and let — nay, make — Ralph Neas and Nan Aron defend unlimited, centralized government.


The Democrats’ true understanding of “activism” is a departure from judicially enshrined liberal shibboleths. That obvious observation, though, provides no useable platform for Republicans: Thanks partly to its past preoccupation with judicial “restraint” and style, the GOP lacks the capacity to engage in any direct debate about constitutional hot-button issues. The debate surrounding the administration’s position in the Michigan affirmative-action cases showed, and whatever decision is reached in those cases this coming June will show again, that not one Republican official of national stature can speak confidently about the subject. Nor can the party speak confidently and sensibly about “gay rights.” (The expectation that the issue will play poorly for the GOP is a plausible reason for the four liberal justices’ appalling and otherwise inexplicable decision to yank a trumped-up sodomy case from Texas onto this year’s Supreme Court docket.) And on it goes.

Perhaps, though, the GOP can still pick a fight over democratic self-government, as against the Democrats’ wrongheaded centralization of power. That principle operates at one remove from the social issues that paralyze the party’s leaders. It is also a substantive and attractive constitutional principle. The GOP desperately needs such a principle — for the most practical, political reasons.

— Michael S. Greve is the John G. Searle Scholar and director of the Federalism Project at the American Enterprise Institute.


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