The Right Court Fight

The Threat of Judicial Activism Comes from the Right

The genius of American conservatives over the past thirty years has been their understanding that the most effective way to change the country is to change the terms of our political debate. On issue after issue, they have done just that. Sensible regulation was cast as a dangerous quest for government control. Modest measures to alleviate poverty became schemes to lock the poor into "dependency." Advocates of social insurance were condemned as socialists. Government was said to be under the sway of a distant "them," even though in a democracy, government is the realm of "us." And attempts to achieve a bit more economic equality were pronounced as assaults on liberty.

Nowhere has the conservative intellectual offensive been more effective than in transforming our discussion of the judiciary, and that is why the coming clash over President Barack Obama's next Supreme Court nominee is so important. The test of success for liberals should not simply be winning the confirmation battle. This fight must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it.

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 ranging from pay discrimination and school integration to antitrust laws and worker safety regulation. If anyone doubted that the Supreme Court's current conservative majority wants to impose its own view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms.

In granting corporations an essentially unlimited right to spend money to influence the outcome of elections, that ruling defied decades of legal precedents and congressional enactments. The nonelected branch of government decided it didn't like existing legislation, so it legislated on its own. Justice John Paul Stevens, whose retirement will open up a seat on the court, offered one of the finest dissents of a distinguished career when he noted that to arrive at the result it did, the court majority not only violated precedent, but also had to reach beyond the case at hand to do so. 

"Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law," Stevens wrote. Now that is judicial activism.   Stevens added: "In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules."

Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.

What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the past seventy years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.

In his eerily relevant new book on the struggle between Franklin D. Roosevelt and the Supreme Court, Supreme Power, Jeff Shesol reminds us that the conservatives of that day were "imbued with a sense that they were saving civilization from Bolsheviks, collectivists and other sundry radicals." One suspects that the current conservative court majority has a similar view of its mission.

So this time around, let's have a new court debate that focuses on more than just where a nominee stands on Roe v. Wade. Let's remember that the truly "elitist" judges are the ones who protect the privileges of the powerful over the right of Congress to legislate on behalf of workers, consumers, and the environment. Let's ignore the claims of conservatives that they are opposed to "legislating from the bench," since it's their judges who are now doing the legislating. If liberals can't successfully challenge conservatives on first principles, they'll never win the fights that matter.

(c) 2010, Washington Post Writers Group


  Related: "Who Approves this Message?" by Steven H. Shiffrin

"Cleaning Up the Supreme Court Mess," by E. J. Dionne Jr.

"Judicial Modesty," by Richard W. Garnett

"Rules Are Not Enough," by Cathleen Kaveny

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About the Author

E. J. Dionne Jr. is a syndicated columnist, professor of government at Georgetown University, and a senior fellow at the Brookings Institution. His most recent book is Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent (Bloomsbury Press).