Today's "I don't know the constitution from a hole in the ground, but I'm going to pretend like I do anyway" New York Times Op-Ed brought to you by Adam Cohen. In it, he argues that Justice Scalia is, in fact, an activist judge and therefore hypocritical in criticizing the use of things like foreign precident and norms in deciding United States law. Let's see what he's got!
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.
We have a conservative legislature - if you're upholding legislative will, you're often going to be "siding" with the "conservative" side of an issue. I know that Cohen is probably a blue state commie who wants the supreme court to establish a Marxist utopia, but sadly, that's not what the majority of the country wants. Sadly, the constitution gives the legislature the ability to pass laws, not the hippie bench.
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.
I'm pretty sure this paragraph was ghost written by Teri Schiavo. (GET IT? GHOST WRITTEN? SHE'S DEAD, NIGGA!) The decision being quoted here is Blatchford v. native Villiage of Noatak. The case involves, basically, an Indian tribe suing under a law that granted $25,000 to any tribe that did not have a state-chartered corporation in its territory. The quote that is being horrifically decontextualized. If you take it out of context, but with the words in the middle present, it reads, "Despite the narrowness of its terms, since Hans v. Louisiana... we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty..." The opinion goes on to note that Indian tribes are sovereign (as established by, among other things, treaties and the entire myriad of jurisprudence relating to their actions) and the 11th amendment specifically precludes suit "by Citizens or Subjects of any Foreign State." The opinion is simply arguing that it also precludes suit by a foreign state without a statutory allowance. It's not a terribly contentious opinion.
He goes on to cite other instances of what he claims are "judicial activism" by the conservative judges:
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.
Yes. The Gun-Free School Zones Act was passed with the rationale that it could be done under the commerce clause*. Ask yourself: does a law banning firearms within a thousand feet of a school sound like something the founders envisioned when they gave the federal government the ability to regulate commerce "between states?" Because if so, you have a very different view of history than... anyone. The Violence Against Women Act (actually, section 13981 of the act - not the entire act - the case is US v. Morrison) seeks to do basically the same, asking the court to uphold a statue regarding a cause of action for gender-based violence as "a regulation of activity that substantially affects interstate commerce." Cohen doesn't even begin to defend that either of these are, in fact, constitutional - he just cites them because the bills have names that seem appealing.
The article continues:
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.
Yes, strangely, the court has established that legislation passed under the 14th amendment must actually uphold the 14th amendment. It's crazytown! Where could they have possibly gotten the idea that the clause of the amendment which reads "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article" means that congress ONLY has power to enforce it with appropriate legislation? Activism, indeed.
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.
This is probably becuase the Eighth Amendment does not deal with prison conditions unless they are actually "Cruel" or "Unusual" and not "Uncomfortable," while the takings clause specifically deals with the taking and regulating of property.
The rest of the arguments he uses are just recitations in this vein. He cites Bush v. Gore, and makes statements like "[i]n [Scalia's] view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime." It's worth noting that it lets Texas make sodomy a crime, not "gay sex" - but otherwise, it's just doing more of the same.
I have a few problems with the editorial, in a holistic sense. First, apart from the eleventh amendment paragraph, nowhere in the article's thousand words does he claim that a single one of the actions described was contrary to Scalia's originalism. (Originalism is utterly distinct from strict-constructionalism, by the way.) The entire argument is predicated upon "Scalia's decisions tend to be conservative in outcome, and therefore are politically motivated." The case law is rife with instances of Scalia voting to strike down a law he agrees with or to uphold one he does not. Can that be said equally for Breyer? Can YOU find a case where Stevens has, despite his liberalism, decided to effect conservative policy? The reason, as noted before, that this tends to be the case is simply that the legislatures in this country are conservative. Most laws passed since Scalia ascended to the bench are 'conservative.'
Second, he perpetually conflates the 'conservative' judiciary with conservative politicans, referring to comments made by Ton DeLay about Teri Sciavo and then referring to something about Scalia. While he never openly says so, he presumes that the two are in cahoots without ever making the connection explicit or clear, except to say that Scalia has been praised by conservatives. It seems to me that, if the point of the editorial is to argue that conservatives are judicially active, you'd spend more time talking about that and not digressing into banter about Schiavo, a manifestly irrelevant case as the Supreme Court repeatedly denied appeals to hear the case.
The entire thing is an exercize in sophist punditry. He references the VAWA, Gun-Free School Zones, and Bush v. Gore because he's preaching to the choir. He isn't trying to convince anyone with the slightest hint of critical thinking who does not already agree with him. This editorial will never take someone who believes that Scalia is correct in his dealings, and convince them otherwise since it at no point refers to any inconsistencies in his decisions and originalism. Its argument, more broadly, is "conservative judges like Scalia often do not interpret the constitution in the way that makes it mean what liberals want it to mean. Therefore, they are activist." It's ludicrous and a waste of print.
The article has a telling closure where Cohen says, "They [conservative legislators] 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." The problem is that "judges who disagree with them" are also, given that the Republicans control the presidency and both houses, judges who are undermining the democratic will of the country. A 'conservative' judge in this day and age is one who is not keen on enacting their own opinions in place of the actual statutory law they are sworn to uphold. So no, the legislature doesn't want to get rid of people who disagree with them, as long as those disagreements do not carry over into what amounts to a denial of the most fundimental right to live in a nation that observes the rule of law.
*United States v. Lopez
cranked out at 12:38 PM | |
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