Bench Memos

Wrong-Way Dionne

As usual, Washington Post columnist E.J. Dionne Jr. gets just about everything about the Supreme Court wrong in his op-ed today.  A few examples:

1.  Dionne contends:

Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation.

As I understand it, three of Dionne’s four examples of “areas” of supposed conservative judicial activism—“pay discrimination” (by which he apparently means the Court’s single ruling in Ledbetter v. Goodyear Tire & Rubber Co. on the EEOC filing deadline for Title VII claims), “antitrust laws” (by which he apparently means the Court’s single ruling in Leegin Creative Leather Products v. PSKS, Inc., that rejected the position that vertical resale price maintenance is per se illegal), and “worker safety regulation” (I don’t know offhand what case he might be referring to)—involve rulings on issues of statutory interpretation that can readily be revisited by Congress.  Even if one were to indulge the (highly dubious) assumption that the Court got it wrong in these cases, it’s simply ludicrous to compare such cases to liberal judicial activist rulings that invent constitutional rights and that thereby deprive the American people of the ability to legislate on those matters. 

Dionne’s fourth area of “school integration” presumably refers to the Court’s pair of cases in 2007 that ruled that racial-balancing plans in Seattle and Louisville violated the principle of Brown v. Board of Education by assigning children to public schools on the basis of race. 

Can anyone seriously contend that these rulings (again, even if one indulges, for the sake of argument, the assumption that they were wrong) remotely compare in magnitude to the decades of liberal judicial activist rulings on matters ranging from abortion to the death penalty to obscenity to the Establishment Clause to criminal procedure to same-sex marriage?

2.  Dionne contends that the Court’s ruling in the Citizens United campaign-finance case somehow shows that the Court’s “current conservative majority wants to impose its view no matter what Congress or state legislatures decide.”  No.  What the ruling shows, as the Chief Justice emphasized in his concurrence, is that five justices rejected the alarming theory of the First Amendment offered by the government—a theory that “if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations.”

3.  Dionne contends that the goal of “today’s conservatives” is “to overturn the past 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.”  But he offers not an iota of sober evidence for his crackpot contention.