The New York Times gets it right — the judicial activists are the right-wing justices like Antonin Scalia.
For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.
This should not be surprising. Republican administrations, spurred by conservative interest groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.
When Antonin Scalia and Anthony Kennedy were selected by the Reagan administration, the goal was to choose judges who would be eager to undo liberal precedents. By the time John Roberts Jr. and Samuel Alito Jr. were selected in the second Bush administration, judicial “restraint” was no longer an aim among conservatives. They were chosen because their professional records showed that they would advance a political ideology that limits government and promotes market freedoms, with less regard to the general welfare.
And it goes on — it’s worth reading.
The Times makes the point that “judicial restraint” has had nothing to do with “legal conservatism” for about the last 20 years — since Republican presidents starting with Ronald Reagan began appointing judges and justices with the specific intent of selecting judges and justices who would reverse what Ed Meese and the Federalist Society saw as judicial activism on the left. Actually, Meese and the Federalists were right — decisions like Brown v. Board of Education and Miranda v. Arizona and Roe v. Wade WERE examples of judicial activism. (A digression — the biggest, most profound example of judicial activism in modern history is Brown v. Board of Education. Is there anyone who, in 2012, would argue that Brown v. Board was wrongly decided?) The difference between the pre-Reagan selections for the judiciary and the Reagan selections for the judiciary is that the Reagan Administration made no pretense of trying for the best judges and justices. And the pretense is pretty much gone now.
What we have seen recently — since Bush v. Gore and Citizens United in particular — is a sizeable portion of the Court that is made up of what I will term “movement conservatives.” These are justices who embrace the political agenda of the conservatives, and who embrace the idea that they have been put on the Court to advance that agenda. As this editorial points out, Justice Scalia was commenting from the bench during arguments about the difficulty of getting 60 votes in the Senate to pass something — a VERY inappropriate comment for a Justice to make.
Likewise, Justice Scalia’s willingness to delve into health care politics seems utterly alien to his moderate colleagues. On the question of what would happen if the mandate were struck down, Justice Scalia launched into a senatorial vote count: “You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest.” Justice Breyer, by contrast, said firmly: “I would stay out of politics. That’s for Congress; not us.”
Looking at the biographies of the Justices, we see conservative justices who had clerked for conservative justices, and liberal justices who had clerked for liberal justices. There is nothing wrong with that. We also see conservative justices who worked in Republican Administrations and liberal justices who worked in Democratic Administrations. Nothing wrong with that either. The point is not that the liberal justices (or, really, the moderate justices, because they have not seemed particularly liberal to me) have biographies that are in any way different from, or morally superior to, the biographies of the conservative justices (or, really, the radical justices, because they are not terribly conservative to me).
The real difference in the two wings of the Court is that the leaders of the conservative wing were all appointed with the idea that they would help to reverse years of liberal jurisprudence, and they zealous in pursuit of that goal. The liberal justices, by comparison — perhaps because they know they don’t have 5 votes — have not seemed to be pushing any particular political agenda. Even during the 1960’s and 1970’s, the “liberal” Court dominated by Justice William Brennan was made up of mostly non-political types. Chief Justice Warren had been the Republican Governor of California, Hugo Black had been a Democratic U.S. Senator from Alabama, and other members of the Court had some political experience, but there was little sense of division along partisan political lines on that Court. Of course, that was also in the era when there were such people as liberal Republicans…
During the arguments on the healthcare bill, most of the Justices were dealing with the issues actually presented; Justice Scalia, on the other hand, had swallowed the Republican talking points on the healthcare bill — hook, line and sinker. See the Talking Points Memo post on the topic here. Justice Scalia asked about the “Cornhusker kickback,” which was not in the final bill. He asked about whether the Administration thought that Congress could compel people to eat broccoli. He noted that the bill was 2,700 pages long, and suggested that the Administration wanted the Court to read the entire bill and rule on its provisions one-by-one, which was a ridiculous comment since the Court only addresses the issues that it is brought, and there were only a few aspects of the bill that were being fought over. Perhaps he was just being a buffoon, playing the serious moment for laughs. Of course, Justice Scalia is known for using oral argument not as an opportunity to probe the subtleties of the issues with the advocates but as an opportunity to bludgeon the other side, and to try to score points for his later arguments with his colleagues. So in this case, where there were so many other targets than just the law and the lawyers, perhaps it is not surprising that he went after things like broccoli and non-existent provisions like the Cornhusker kickback.
But back to the point of the New York Times editorial — when Justice Scalia made his point about where 60 votes would come from in the Senate, the liberal Justice Breyer pointed out that that sort of political discussion was not for the Court to have.
Breyer was right, and the New York Times editorial is right also.