Scalia: Judicial Activist

If you ever hear a conservative decry judicial activism yet offer praise for Antonin Scalia, please call them out on it.  It is hard to imagine a more egregious example of judicial activism than Scalia’s performance in oral arguments over the Voting Rights Act.  The idea behind judicial activism is that judges insert their views in the place of democratically-elected officials.  Sometimes, this is clearly appropriate (e.g., Brown v. Board of Ed), but there’s something to be said for the idea of deferring to the duly-elected representatives of the people unless you’ve got a very clear and compelling reason not to.  Then again, if you are Scalia, not so much.  The Post editorial sums it up nicely:

“It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation,” Justice Elena Kagan said, in what might seem a self-evident point.

But not to Justice Scalia. “Or decided that perhaps they’d better not vote against, that there’s . . .none of their interests in voting against it,” he said. Later he elaborated on why he feels free to dismiss this particular congressional action: “I don’t think there is anything to be gained by any senator to vote against continuation of this act. . . . They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”

This is a stunning line of argumentation. Congress is empowered to write legislation enforcing the Fourteenth and Fifteenth Amendments. But if Justice Scalia doubts the purity of lawmakers’ motives, then apparently this power is limited. We wonder how the justice is able to discern what lay within the hearts of these 98 senators. We also wonder how many challenged acts of Congress would survive if the court saw fit to strike down any that were enacted by lawmakers considering, in part, their reelection prospects.

Indeed.  Also note, how easily the Post eviscerated Scalia’s logic here.  I’ve just never understood this cult of Scalia the brilliant jurist.


About Steve Greene
Professor of Political Science at NC State

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