April 19, 2005
EDITORIAL OBSERVER
Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too
By ADAM COHEN
 ot
since the 1960's, when federal judges in the South were threatened by
cross burnings and firebombs, have judges been so besieged. Senator
John Cornyn, Republican of Texas, set off a furor when he said judges
could be inviting physical attacks with controversial decisions. And
last week the House majority leader, Tom DeLay, called for an
investigation of the federal judges in the Terri Schiavo case, saying
ominously: "We set up the courts. We can unset the courts."
Conservatives claim that they are rising up against "activist
judges," who decide cases based on their personal beliefs rather than
the law. They frequently point to Justice Antonin Scalia as a model of
honest, "strict constructionist" judging. And Justice Scalia has
eagerly embraced the hero's role. Last month, after the Supreme Court
struck down the death penalty for those under 18, he lashed out at his
colleagues for using the idea of a "living Constitution" that evolves
over time to hand down political decisions - something he says he would
never do.
The idea that liberal judges are advocates and partisans while
judges like Justice Scalia are not is being touted everywhere these
days, and it is pure myth. Justice Scalia has been more than willing to
ignore the Constitution's plain language, and he has a knack for coming
out on the conservative side in cases with an ideological bent. The
conservative partisans leading the war on activist judges are just as
inconsistent: they like judicial activism just fine when it advances
their own agendas.
Justice Scalia's views on federalism - which now generally command a
majority on the Supreme Court - are perhaps the clearest example of the
problem with the conservative attack on judicial activism. When
conservatives complain about activist judges, they talk about gay
marriage and defendants' rights. But they do not mention the 11th
Amendment, which has been twisted beyond its own plain words into a
states' rights weapon to throw minorities, women and the disabled out
of federal court.
The 11th Amendment says federal courts cannot hear lawsuits against
a state brought by "Citizens of another State, or by Citizens or
Subjects of any Foreign State." But it's been interpreted to block
suits by a state's own citizens - something it clearly does not say.
How to get around the Constitution's express words? In a 1991 decision,
Justice Scalia wrote that "despite the narrowness of its terms," the
11th Amendment has been understood by the court "to stand not so much
for what it says, but for the presupposition of our constitutional
structure which it confirms." If another judge used that rationale to
find rights in the Constitution, Justice Scalia's reaction would be
withering. He went on, in that 1991 decision, to throw out a suit by
Indian tribes who said they had been cheated by the State of Alaska.
Conservative politicians insist that courts should defer to the
democratically elected branches, but conservative judges do not seem to
be listening. The Supreme Court's conservative majority regularly
overturns laws passed by Congress, like the Violence Against Women Act
and the Gun-Free School Zones Act. The court has even established a
bizarre series of hoops Congress must jump through to pass a law
protecting Americans' 14th Amendment equal-protection rights. Congress
must prove in many cases that the law it passed is "congruent" and
"proportional" to the harm being addressed. Even John Noonan Jr., an
appeals court judge appointed by President Reagan, has said these new
rules - which Justice Scalia eagerly embraces - reduce Congress to the
level of an "administrative agency."
Justice Scalia likes to boast that he follows his
strict-constructionist philosophy wherever it leads, even if it leads
to results he disagrees with. But it is uncanny how often it leads him
just where he already wanted to go. In his view, the 14th Amendment
prohibits Michigan from using affirmative action in college admissions,
but lets Texas make gay sex a crime. (The Supreme Court has held just
the opposite.) He is dismissive when inmates invoke the Eighth
Amendment ban on cruel and unusual punishment to challenge prison
conditions. But he is supportive when wealthy people try to expand the
"takings clause" to block the government from regulating their
property.
The inconsistency of the conservative war on judges was apparent in
the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist
courts, does not want to investigate the federal trial judge and the
United States Court of Appeals for the 11th Circuit for judicial
activism, but for the opposite: for refusing to overturn the Florida
state courts' legal decisions, and Michael Schiavo's decisions about
his wife's medical care.
The classic example of conservative inconsistency remains Bush v.
Gore. Not only did the court's conservative bloc trample on the Florida
state courts and stop the vote counting - it declared its ruling would
not be a precedent for future cases. How does Justice Scalia explain
that decision? In a recent New Yorker profile, he is quoted as saying,
with startling candor, that "the only issue was whether we should put
an end to it, after three weeks of looking like a fool in the eyes of
the world." That, of course, isn't a constitutional argument - it is an
unapologetic defense of judicial activism.
When it comes to judicial activism, conservative judges are no
better than liberal ones - and, it must be said, no worse. If
conservatives are going to continue their war on the judiciary, though,
they should be honest. They do not want to get rid of judicial
activists, a standard that would bring down even Justice Scalia. They
want to rid the courts of judges who disagree with them.
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court-watchers say Justice Antonin Scalia is on a "charm offensive" to
become the next chief justice. Then he must have been taking the day
off when he gave a speech last week and lashed out at the Supreme
Court's recent ruling striking down the death penalty for juveniles,
and at the idea of a "living Constitution." There is nothing charming
about his view that judges have no business considering the
constitutionality of aspects of the death penalty, or that the
Constitution should be frozen in time.