Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—July 25

Sen. Edward Kennedy on Capitol Hill, January 2006 (Joshua Roberts/Reuters)

1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

2018—An Eleventh Circuit panel rules (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act, which displaced a higher minimum wage adopted by the city of Birmingham, “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.”

The panel’s reasoning has radical implications for further judicial intrusion on the legislative processes. The panel concludes that the allegation that the state law denied 37% of Birmingham’s black wage earners a higher wage, compared to only 27% of white wage earners, would suffice to show “discriminatory impact.” The panel doesn’t say what disparity would be too small. (It would be surprising if lots of routine legislative actions didn’t have a much larger disparate impact.) Nor does it confront the reality that a higher minimum wage could have a disproportionate impact on job loss and on loss of entry-level job opportunities for black workers.

The panel further cites the 10% disparity as evidence of discriminatory purpose and adds in what it sees as the “rushed, reactionary, and racially polarized nature of the legislative process.” Are we really going to have judges deciding how long a legislative process ought to take? And while the panel finds of special interest the race of the legislators and of the members of the Birmingham city council, it never stops to consider whether they divide along the same lines on economic policy. If these considerations “plausibly imply discriminatory motivations were at play,” then lots of ordinary legislative decisions will be subject to judicial second-guessing.

In January 2019, the full Eleventh Circuit will vacate the panel’s opinion and grant rehearing en banc, and in December 2019 it will rule that the plaintiffs lacked standing to sue.

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