Now that President Trump has named Brett Kavanaugh as
his nominee to replace retiring Justice Anthony Kennedy, we can expect the
confirmation process charade to proceed apace. Judge Kavanaugh will dodge most
if not all the hard questions put to him by members of the Senate Judiciary
Committee, the Democratic members will complain loudly, and then the nominee will
be confirmed by a party line or almost party line vote.
One word we can expect to hear a lot during this
process is “originalism.” More on that below. One phrase we likely will not
hear uttered by folks on either side of the aisle is “judicial activism.” That
is truly unfortunate.
The pejorative description “judicial activism” has had
a checkered past. Arthur Schlesinger first coined
it in a 1947 Fortune magazine article, but he did not define it. In the 1970’s
and early 1980’s, conservative judges, public officials, and pundits used the
term to criticize liberal Warren and early Burger Court decisions such as Roe v. Wade and Miranda v.
Arizona. President Ronald Reagan, Judge Robert Bork, Attorney General Ed
Meese, and many other self-identifying originalists used “judicial activism” to
describe decisions they alleged were based on the Justices’ modern values, not
the Constitution’s original intent. Many liberals responded that “judicial
activism” was just code for progressive decisions that conservatives didn’t
like.
As judges appointed by Reagan and George H.W. Bush
started to dominate the federal judiciary in the 1990’s, however, and started
to exercise aggressive judicial review for conservative ends, those on the
right changed their tune. Suddenly, now that they had control, they agreed with
liberal scholars and pundits that judicial activism was an empty phrase
denoting nothing more than the person employing it disagreed with the decision
at issue. Partly because of this political back and forth, few scholars now use
the phrase. We should bring it back.
People can reasonably differ over how to apply
open-ended constitutional provisions (such as the first and fourteenth
amendments) to current conditions, but we should all agree that judges should
honestly explain the decisions they reach. Therefore, a reasonable definition
of “judicial activism” is a decision by a judge who claims to follow a
consistent judicial philosophy but then strikes down (or upholds) a law in a
manner inconsistent with that philosophy, absent reasonable explanation. Such a
decision is “activist” in the sense that, because of the judge’s deviation from
his previously explained legal norms, there is strong reason to suspect the
result was reached for personal or political reasons apart from law.
During the last two weeks, there have been the
inevitable statements by Republican politicians and pundits, including Leonard
Leo, the President’s chief advisor on judicial nominations, emphasizing how
important originalism is to constitutional interpretation. Even President
Trump, according
to Leo, said that he wants his nominee to “interpret the Constitution the way
the framers meant it to be.” No doubt Judge Kavanaugh will repeat that
commitment in the upcoming months.
There are two Justices now on the Court who purport to be originalists,
Justices Clarence Thomas and Neil Gorsuch. Thomas
has been repeating the
originalism mantra for nearly thirty years. Gorsuch
repeatedly testified to his alleged
originalist bona fides during his confirmation hearing in March 2017.
Thomas,
however, has a long record of voting in a non-originalist manner. He has voted to strike down state and federal affirmative action
laws, campaign finance reform, and laws directing the states to help implement
federal programs, without ever justifying those votes on the basis of original
meaning. Those are just a few of many other examples. Now, Gorsuch has
joined Thomas in this non-originalist spree of overturning laws they simply
don’t like.
Last year,
Thomas and Gorsuch voted to strike down a nineteenth century Missouri state
constitutional provision prohibiting public money from going to religious
organizations. Their concurring opinion did not rest on any ratification era
(either 1787 or 1868) evidence. No doubt if they could have they would have
presented originalist sources, but the reality is that the original meaning of the free exercise clause would
clearly have allowed this statute to stand.
Both Justices would have you believe that judges doing
exactly what they did, striking down a law or a state constitutional provision
despite its clear validity under an originalist approach to constitutional
interpretation, is an irresponsible breach of judicial duty. Yet, they did
exactly that without explaining their departure from what they claim is their
normal judicial methodology. This inconsistency is a classic example of
judicial activism.
This term
the Justices did much more of the same. Thomas and Gorsuch voted to strike down
four state laws on free speech grounds. These laws included a Colorado
non-discrimination law as applied to a baker who refused to bake a cake for a
same-sex wedding (the majority took a much narrower one-case-only approach). They also invalidated 23 state
laws requiring public sector employees to pay union fees if they were covered
by collective bargaining agreements whether or not they joined the union; a
Minnesota law prohibiting political
apparel in voting places; and a California law requiring so called “crisis pregnancy centers” to provide truthful state-furnished information regarding
abortion. Whether they wrote their own opinions or joined the opinions of other
conservative Justices, no originalist evidence was presented suggesting any of
these laws should be struck down.
This is not to say there aren’t reasonable
non-originalist arguments to support striking down each of these laws, but
sincere originalist judges should have ruled for the states in each case.
For Justices Thomas and Gorsuch who claim to disavow
non-textual, non-originalist considerations, these cases should have been easy
victories for the states. But they chose their political conservatism over
their stated methods of constitutional interpretation in each case as they also
did in last term’s important religion case.
Justices Thomas and Gorsuch deserve the label
conservative judicial activists. And legal scholars (as well as Senate
Democrats) should not be afraid to use that term.
