Redefining Judicial Activism


When I went to law school in 1984 Justice Rehnquist was really the only conservative justice on the Court.  Certainly the only one still recognized today as a true conservative.  He was the champion of a narrow federal government, states rights, and a skeptic of the predecessor Warren Court’s expansion of minority and individual rights.  After Rehnquist’s conservative ideology Justice Scalia provided an intellectually purer alternative.  With his singular, insistent, but surprisingly funny focus on the original language of the Constitution or statute in question, Scalia was less Nixonian in outcome.

Today Justice Thomas reliably votes with Scalia along with at times the two new conservative justices, Chief Justice Roberts and Justice Alito.  But Roberts and Alito as conservatives harken back to Rehnquist. They are the Federalist Society’s (the Reagan era conservative legal think tank)  Nixonian seeds germinating in Scalia’s soil of originalism.

The majority theory of the Constitution that for a generation had overwhelmed Justice Rehnquist was the belief that the Founders wrote the constitution expansively  with the design that the language of 1787 could bend to solve the unimaginable problems of 1887 or even 1987.  Scalia’s positions mandated a constitution written in a time of mass agrarianism still meant the same today regardless of airplanes, quantum physics, modern and economics.

The new third way of the Federalist Society rejected the discipline of Scalia’s originalism.  It drove home the sins of decades of an  “activist judiciary” that had strayed from narrow judicial rulings into the world of a super legislature.  Justice Robert’s famous “And I will remember that it’s my job to call balls and strikes and not to pitch or bat” is a more folksy recitation of  the Federalist Society’s webpage that declares it is “the province and duty of the judiciary to say what the law is, not what it should be”.

Scalia’s writings have generally given great deference to Congress even on decisions that personally he must have found difficult such as Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).   In Oncale Justice Scalia writing for the court extended Title VII’s protection against sex discrimination to same sex harassment.   Scalia must have known the decision was yet another step on the path to GLBT equality, but despite his traditional Catholic devotion he honored Congress’s plain language.

It is this discipline of thought that separates Scalia’s originalism from the more ideological Roberts and Alito.   Despite the “balls and strikes”, Roberts and Alito always  find a way to coincidentally uphold conservative political policy.  A clear recent example is Citizens United 558 U.S. 08-205 (2010), which adopts the conservative political position on campaign finance guaranteeing unlimited campaign finance spending under the First Amendment.   Chief Justice Roberts separately concurs in an opinion only Justice Alito joins. The Chief Justice  painfully reviews not the substance of the case, but why in this case this conservative majority was entitled to invalidate this law.

It is a defense of the indefensible.  Justice Scalia, the originalist, simply declares the original language of the First Amendment as clear on its face.  It is actually possible to see thirty years of consistent originalism in Scalia’s concurrence.   But Roberts and Alito prepare the path for a revolution to change the character of the federal judiciary to one fundamentally sympathetic to conservative political causes.

With this term’s oral arguments on the Affordable Care Act/Obamacare (pick your label) we see how revolutionary this new conservative movement in the federal judiciary could become.   The insurgent conservatives will argue for the Court’s conservative majority overturning a highly debated law passed in both Democratic controlled houses of Congress and signed by a Democratic President.

The Court will in essence conduct a broad conservative majority review of  the 1930s New Deal cases. It could achieve judicially what Reagan could not achieve in Congress.  By attacking the basis for the modern federal government as a permanent twenty percent of GDP, the conservatives on the Court may force its shrinkage.   If Congress cannot regulate one-sixth of the domestic economy as interstate commerce,  is there a constitutional basis for many of  the federal agencies established after 1932?

And if the Court does declare the Affordable Care Act/Obamacare unconstitutional, then have we not come full circle to an activist conservative Supreme Court replacing the policy of the political branches with its own view of better policy?



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