A Wallflower Court at the Legislative Dance

THE BALTIMORE SUN

Rockville -- "Activist" long has been the label used to tar judges seen as too willing to promote a liberal agenda. Supporters of a liberal judiciary have sought to deflect criticism by abandoning activism, not in fact but in word. They made "activist" a live grenade to be thrown at the opposition -- the conservatives on the Supreme Court.

And the charge has been taken up by the national press. A recent headline proclaimed: "Conservatively Speaking, It's an Activist Supreme Court." The columnist Tom Wicker wrote that new majority on the court, "though cloaking itself in the threadbare robes of judicial restraint, actually has been radical and unrestrained in imposing its own political views on the nation." Chief Justice Rehnquist, according to another columnist, Edwin Yoder, "is no cautious apostle of constitutional literalism, but an unabashed and resolute judicial activist."

The fairest charge against the Rehnquist court is that it is anything but activist, that it is not imposing on anyone, but

rather scurrying to get out of harm's way. Draping the banner of activism around the Rehnquist court serves only to distort debate and undermine very sound reasons why an activist judiciary can be vital. Liberals would do better to come out of their foxholes and make a case why the court's retreat from activism is ill-advised.

Tension over the role of the court -- an elite, unelected body -- is inescapable in a democracy. The conflict between judicial activism and restraint, between a court that overrides legislative and executive actions and one that defers to the political branches, is rooted in the Constitution. The founders created the Supreme Court as the apex of the third branch of the federal government, but they neglected to tell the Supreme Court just what it was to do.

The Constitution says only that "the judicial power shall extend to all cases" and "controversies," without saying just what the judicial power entails. Can the Supreme Court invalidate congressional and presidential actions that it believes are unconstitutional? The Constitution is silent, but the Supreme Court soon decided it did have that power, in Marbury v. Madison. Ever since, the court periodically has been accused of thwarting the will of the people and imposing its own whims under the guise of constitutional law. Franklin Roosevelt claimed the court suffered from "hardening of the judicial arteries" when it struck down one after another of his unprecedented regulatory measures. Later, conservatives assailed the "imperial judiciary" of the Earl Warren era.

Mr. Wicker accuses the Rehnquist court of hiding its activist "intentions in pious and misleading conservative rhetoric." But it is the charge, not the court, that is misleading. The court has not been activist, but rather restrained, perhaps to a fault. In every area of constitutional law in which the court has drawn liberal ire, such as criminal procedure, privacy, and free expression, the court has been assailed not because it has substituted a judicial vision of the good society for a legislative one, but because it has failed to do so. In virtually the same breath that he painted the court as activist, Mr. Yoder faulted the court for its "rubber-stamping of official acts." This charge is closer to the mark, and may be almost a compliment from the perspective of advocates of judicial restraint, such as Robert Bork.

The practical impact of the court's shift toward restraint has been modest. Even where the court has retrenched, deferring more and more to the state, it only has nibbled around the edges. Although the impact of decisions narrowing application of the exclusionary rule or expanding the class of acceptable death-penalty laws, for example, can be quite profound for the parties involved, they have not produced wholesale changes in how the police and courts conduct their business. No decision of the court has had an impact remotely like Miranda v. Arizona, Gideon v. Wainwright, or Brown v. Board of Education, and none is likely to. These major precedents of the Warren court have not been and will not be reversed.

Roe v. Wade is the one major precedent that clearly is vulnerable to rejection by the new court. Stephen Wermiel reported in the Wall Street Journal that President Bush would surely nominate "a conservative committed to continuing the court's restriction of abortion." But the court has not placed restrictions on abortion; legislatures have.

The distinction is not trivial. In overturning Roe, the court would leave the door open for state legislatures, state courts and Congress to protect abortion rights. In contrast, a conservative activist court would not simply overturn Roe; it would rule that the fetus has constitutional protection from the moment of conception, making all but the most narrow abortion statutes unconstitutional.

Roe, and the predecessor case that established the right of privacy, Griswold v. Connecticut, are anomalies in modern constitutional law. While their policy impacts most outrage conservatives, the legal derivation of the privacy right troubles many liberals.

Where modern justices have found a right of privacy between the lines of the Constitution, the old court that gave Roosevelt such fits before it saw the liberal light found "liberty of contract," a right it used to strike down many regulatory measures. When the court capitulated to political pressure in the "switch in time that saved nine," it announced it would no longer protect rights not clearly stated in the constitution. Griswold and Roe, by abandoning the pretense of sticking to explicit constitutional language, opened the door to a new era of activism that could be conservative as well as liberal. A rejection of Roe would in no way undermine the core doctrines of modern liberal jurisprudence.

While the liberal fallacy is that judicial restraint is actually conservative activism, the conservative fallacy is that the Supreme Court can somehow fulfill its duty to apply the Constitution without being activist, without following subjective judgments and stepping on legislative toes. In announcing his choice of Clarence Thomas to succeed Thurgood Marshall, President Bush professed he was confident that Judge Thomas would "faithfully interpret the Constitution, and avoid the temptation to legislate from the bench."

What is meant by the charge of judicial "legislating," I think, is that court decisions should not interfere with public policy. But in that sense, interpreting requires legislating; to avoid the latter may be to abdicate the former. A court that does not use its "veto" power to hamper the policies of government, when in the eyes of the justices those policies trample on the rights of individuals, is a court that has abandoned its constitutional role.

The language of the Constitution is brief and general, and justices cannot help but make controversial judgments. The founders did not intend for the justices to be timid wallflowers, fearful of cutting in on the dance of legislation. Alexander Hamilton argued that an independent judiciary, willing to stand up to the political branches, was an essential part of the constitutional structure. "Liberty can have nothing to fear from the judiciary alone," he proclaimed, "but would have everything to fear from its union with either of the other departments." A court that bends over backward to sustain governmental actions, in the mistaken belief that democracy requires its subservience, endangers the personal liberty that it alone can protect.

The Rehnquist court has shrunk from this duty. Liberals would do better to accuse conservatives of abdication, not activism. Who knows, they might recapture the presidency someday, and find themselves chagrined that they helped make the judicial "activist" an object of ridicule.

Dennis J. Coyle teaches politics at the Catholic University of America.

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