A Slightly Different Definition of Restraint

Yesterday, in an op-ed for The Washington Post, Senator Arlen Specter (R-PA) plugged his proposal for televising Supreme Court proceedings -- a proposal that Alliance for Justice is actively supporting. Though something of a non sequitur, Specter also used the piece to take another well-deserved shot at the decidedly conservative brand of judicial activism that the Supreme Court has practiced over the past decade. Specter, Chair of the Judiciary Committee, unfortunately acquiesced today in the Republican leadership’s effort to gin up the conservative base for the November midterms by agreeing to begin pushing through the White House’s most controversial judicial nominees. But on the issue of the aggressive conservative activism of the Supreme Court in recent years, the senior senator from Pennsylvania is spot on.

Repeating a point that he made forcefully during the confirmation hearings of John Roberts and Samuel Alito, Specter wrote:

But does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states. Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.

Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."

I agree that our constitutional system is best served by giving the Supreme Court the last word, but there is no doubt that congressional procedures and authority have been severely diminished by the court.

Specter could have added that in 10 short years, the Rehnquist Court –- cheered on by “movement” conservatives -- boasted an annual rate of invalidating federal laws far greater than in any other era. Often by a 5-4 vote, the Court struck down more than 35 acts of Congress, including laws protecting workers, seniors, people with disabilities, abused women and religious minorities. Specter could have also mentioned that despite the Right's constant carping about "liberal" judicial activism, it is the Supreme Court's reputed conservatives who have led the charge here. A recent study by professor Paul Gewirtz and Chad Golder of Yale Law School showed that, between 1995 and 2004, Justices Thomas and Scalia ranked first and third, respectively, in their willingness to override the will of Congress. Justices Ginsburg and Breyer were at the bottom, trailing far behind. (Specter quotes Justice Scalia's criticism of the standard that conservative justices have adopted for reviewing and invalidating anti-discrimination legislation. Specter fails to mention, however, that Justice Scalia opts for a rule that would choke off Congress's authority to enact nationwide antidiscrimination protections even more than the "flabby" standard that he aptly condemns.)

In the past several years, the Supreme Court has cautiously scaled back its assault on Congress' law-making prerogatives, upholding applications of (1) the Family and Medical Leave Act, (2) the Americans with Disabilities Act and (3) the Controlled Substances Act -- but thanks only to the defection of at least one of the Court's conservatives in each case (Justices O'Connor and Rehnquist in (1), O'Connor in (2), and Scalia and Kennedy in (3)). With the addition of Chief Justice Roberts (who raised questions about the constitutionality of the Endangered Species Act) and Justice Alito (who infamously voted in dissent to invalidate the federal law banning machine gun possession), this scaling back might only reflect a temporary lull. One hopes not. Indeed, one hopes that at least in the case of the Chief Justice, he stays true to the mildly reassuring testimony he gave on this subject during his confirmation hearings.

We have to admit to finding it somewhat amusing—disturbing, but amusing—that right-wingers continue to push the poll-tested message that they believe in "judicial restraint." We get the judicial part, but keep missing the restraint part. Perhaps because, as Senator Specter has so aptly pointed out, there is little resembling restraint in the Right’s approach to the law nowadays.