Judicial activism and ideological consistency

Vacation or not, I can’t not weigh in on the big Supreme Court decisions this week.  Honestly, what strikes me the most is the dramatic switch on judicial activism when it comes to the Voting Rights and gay marriage decisions.  I tell my students that, sadly, in recent years “judicial activism” has basically come to mean a court decision conservatives don’t like.  In common political usage, that’s pretty much the truth.  Now, in scholarly reality judicial activism essentially means using the power of the court (usually to extend principles in the Constitution) to overturn legislation by the duly elected representatives of the people (be it at the state or national level).

Now, there’s a very good argument to be made that, all else being equal, unelected judges should defer to the elected representatives of the people.  Nonetheless, through much of the 60’s, judicial activism generally proved to be a very good thing for American democracy.  All too often, states were willing to use the “tyranny of the majority” to deny the rights of minority citizens or to railroad those accused of crimes with limited concern for “due process of law.”  And in today’s DOMA decision, it’s not a hard call to say that Congress was denying the equal protection of gay Americans and it is up to the Supreme Court to step in and right this wrong.

For the most part, though, judicial activism has been the province of the court’s more conservative members in recent times as they seek to overturn liberal legislation that they don’t like (e.g., the 4 votes against the ACA).  The decision in the Voting Rights case is pretty much a textbook example of judicial activism– the 5 member majority asserting their judgment in place of the judgment of Congress and the President (not to mention a majority Republican Congress and Republican president who passed the recent VRA extension).  Now, one could argue they had to step in because the Southern states needing pre-clearance before they potentially discriminate against their citizens were being treated unfairly by Congress.  But this is not exactly some moral wrong visited on a group of citizens.

What was most striking to me was Scalia’s dissent in the gay marriage case which was basically a paean to judicial restraint, just a day after he signed onto the textbook activism of the VRA decision.  Scalia happily strikes down laws he doesn’t like right and left.  Yet, when he’s in the minority wanting to preserve a clearly discriminatory law, this is somehow a great injury to democracy.  I suppose all the Justices are guilty of this to some degree, but Scalia is truly in a class by himself and his dissent in the gay marriage case was just absurd.

I read a lot of different articles on the court the last few days, but the one that really stuck with me was Eric Posner’s takedown of John Roberts:

Chief Justice Roberts’ opinion in Shelby County v. Holder, the Voting Rights Act case, is a pretty lame piece of work. There is a longstanding constitutional norm of judges deferring to Congress. Courts strike down laws when they violate rights or exceed Congress’ power. But Section 5 of the Voting Rights Act, which requires nine states in the South (and other scattered places) to get approval from the Justice Department before changing their election laws, doesn’t violate anyone’s rights. It’s the type of legislation specifically authorized by the 15th Amendment of the Constitution, which says the right to vote “shall not be abridged” because of race or color. Roberts says that the singling out of Old South states, for what’s called “preclearance” by DoJ, makes little sense now that blacks are as likely to register to vote as whites in those states, or nearly so. But Congress passes hundreds of statutes that are based on weak evidence, and courts routinely uphold them. Roberts doesn’t even try to argue that the costs imposed on states by the preclearance part of the Voting Rights Act exceed the benefits for people who would otherwise be deprived of the vote, which is what would be minimally

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