revenge of judicial restraint?
or judicial activism in conservative clothing
Mark your calendars for 19 July at 5 pm Eastern to discuss Saudi Arabia with AMB James Smith.
I can confirm this afternoon we will discuss Vlad’s military the final week in July. We have secured two retired Army Foreign Area Officers to delve into what happened over the weekend and what more could be see ahead.
The air in the capital region is awful again today, much as true three weeks ago. The first shot was 6 am while the lower one is at present, roughly 2.20 pm. Certainly not getting any better, is it? And it’s only June.
For the second time in 53 weeks, the U.S. Supreme Court ended policies for social change of roughly fifty years’ standing that most Americans thought were fairly settled. As with the Dobbs decision issued a year ago Saturday, the Court’s six-person Conservative majority rejected the concept of applying race-based factors to encourage diversity of attendance and educational opportunity through admissions policies in Students for Fair Admissions, Inc. v. The President and Fellows of Harvard College. A similar case against the University of North Carolina also overturned race-based consideration. The application of race as a criterion for expanding access to previously closed segments of society, such as university admissions, is known by the term ‘affirmative action’ to describe the objective of increasing access to aforementioned disadvantaged groups. Dissatisfying for many, this rejection of long-standing social policy engenders dramatic anger or sympathy, depending on one’s overall beliefs.
Affirmative action underwent a Supreme Court challenge as far back as the Regents of the University of California v. Bakke decision in the late 1970s when the white applicant Allan Bakke argued his rights violated by Cal Davis putting racial quotas in place that led to minorities gaining acceptance to medical school en lieu of him. The Court, under Chief Justice William Rehnquist, held that racial quotas were unconstitutional while upholding Affirmative Action in other forms as a legal remedy for past violations of the equal protection clause of the Fourteenth Amendment. Numerous cases came before the court in the intervening forty years but none invalidated Affirmative Action until today.
The most outspoken criticism that conservatives articulate is that courts should not be activists but should merely enforce the laws as written. Conservatives charged that liberal judges over the past seventy years used the Court’s power to implement social agenda aimed at going well beyond anything the Founders could have envisioned. This implied the Founders lives and visions were pure and they wrote a document completely impartial rather than polluted other motives. The conservative critique argued that activist judges operated by a backdoor power grab to reconfigure the nation.
The Federalist Society, the much cited group led by Leonard Leo at the end of the last century, has roughly 70,000 conservative members advocating for limited government under a constitution rigidly interpreted by its words rather than current social norms or beliefs of what the Founders meant. I fully acknowledge that I am unqualified to be a scholar of jurisprudence to pick apart the archania upon which this group’s members thrive. It is not my field but I do know that it affects every single American every single day. For many, today looks a lot like judicial activism in conservative gowns.
The Roberts Court (2005-present) acrued increasingly conservative justices, particularly after 2017. But it was always expected to be hostile to this ‘judicial activism’ set into motion by the Warren Court in the 1950s. Its earlier versions, including more centrist and liberal justices, split on several decisions that surprised observers. Even the decision earlier this month regarding gerrymandering in Alabama saved a sliver of the 1965 Voting Rights Act on a 5-4 vote. The 2012 case which retained the individual mandate under the Affordable Care Act was a similar shock in preserving health care rights which many see as fundamental rights, although they are not enumerated in the Constitution.
But, the 2022 Dobbs and today’s Students for Fair Admission rulings illustrate the impact of a solidly conservative court bent on destroying policies that support modern America. There is no apparent reason to believe that the fifty year precedent of many of the protections for minorities (including women) will survive. In other words, there is in the United States today no ‘settled law’ on social policies if Dobbs and Fair are indicative. Will laws still protect Jewish and Muslim freedoms? Will LGBT protections survive? Will women see further erosion of their access to the job market?
Indeed, during the confirmation hearings for the more conservative Justices under Senate confirmation hearings of the past twenty years, ‘settled law’ began arising as a direct line of inquiry but the nominees never made the mistake Robert Bork committed in 1988. Bork, a brilliant jurist by any indication, answered forthrightly in his confirmation hearing on the errors committed by judicial activists. Bork argued these cases should have instead followed the original intent of the Constitution. His hearing was a lightning rod for conservatives who despised activism, spawning both the draw towards the Federalist Society and the increasingly vague responses to Senate probing in confirmation hearings. Bork’s nomination went down in flames with the right determined to overturn the words of several activist courts. ‘Borking’ means publicly humiliating and defeating someone under nomination for public office.
The lessons of ‘Borking’ were immediate and enduring. Justices Clarence Thomas in 1991 and Samuel Alito fifteen years later fudged at their hearings on Roe while acknowledging it was an importance piece of American jurisprudence. Similarly, Neil Gorsuch in 2017 danced around answering direct questions about stare decisis or ‘following judicial precedent’. Maine’s Senator Susan Collins reportedly chose to confirm the highly controversial nomination of Brett Kavanaugh after he assured her of the importance of precedent in his approach to the law. The most recent nominee Amy Comey Barrett responded that Roe was obviously controversial because of the questions arising around it so it could not be a super-precedent untouchable by the Court. Similarly, the Chief Justice had articulated a doubts about his commitment to precedent on cases before the highest court.
In other words, opponents of the decision see none of the six Justices against affirmative action today respecting the precedent of prior jurists, terminating a path for social change in America. Those lauding Fair interpret it as six people supporting the Founders’ late Eighteenth Century interpretation of American life.
Embedded in Justice Thomas’s Dobbs concurrent opinion last year was a hint about reconsidering a number of other cases at the foundation of modern America. Griswold v. Connecticut in 1965 prohibited the Government from interfering in a couple’s decision regarding birth control. Two years later, a unanimous Court abandoned laws prohibiting racial intermarriage in Loving v. Virginia. Add to that list LGBTQ+ questions only more recently in the legal system at all. Without respect for precedent, nothing protects these rulings.
The failed Bork nomination illustrates why few decisions in politics are ever final, much as defeats in war rarely end any nation’s aspirations. The humiliation can burn for decades, with the defeated marshaling their forces to overturn what they see as rampant injustice. Will minorities now seek to overturn the Fair action through legislation? Could that alter the nation permanently? Will those who detest ‘judicial activism’ as they define it feel emboldened to file further suits to overturn other laws?
Another lesson today’s Court provides is that elections matter. The single most important privilege of a president is to nominate someone to a lifelong appointment to the ultimate arbitrator in our land. That is lofty stuff.Hillary Clinton’s defeat in 2016 allowed Donald Trump to remake the Court for generations to come. Justice Thomas, appointed young much like Comey Barrett, Kavanagh, and Gorsuch, has already served on the highest court for more than 30 years with no indication he intends to resign at 75. The Court in place today could retain its current individual composition for another decade if not longer. How many of us know for certain who will have the next nomination to the Court? How many of us know who will win any future election?
In other words, actions create consequences across the board.FIN
Sarah Pruitt, ‘How Robert Bork’s Failed Nomination Led to a Changed Supreme Court’, history.com, 29 October 2018, retrieved at https://www.history.com/news/robert-bork-ronald-reagan-supreme-court-nominations
Becky Sullivan, ‘What Conservatives Said—and did not say—about Roe in their confirmations’, npr.org, 24 JUne 2022, retrieved at https://www.npr.org/2022/05/03/1096108319/roe-v-wade-alito-conservative-justices-confirmation-hearings