judicial activism

Kagan Defends Marshall

As we and others have noted, many Republican Senators have adopted the perplexing tactic of attacking Kagan’s strong ties to civil rights giant and Supreme Court Justice Thurgood Marshall. Today, Kagan masterfully defended Justice Marshall’s judicial philosophy against Senator Kyl’s accusations of judicial activism.

Senator Kyl accused Justice Marshall of favoring the disadvantaged over the powerful – a critique that may reveal more about Senator Kyl than Justice Marshall. But as Kagan put it, Justice Marshall’s philosophy wasn’t about unfairly advantaging one group over another – it was about the “Court taking seriously claims that were not taken seriously anywhere else.” I think all of us, with the possible exception of Senator Kyl, can be glad that the Court gave Marshall and his colleagues a fair hearing in Brown v Board.

PFAW

Hatch’s Citizens United Tirade

Sen. Orrin Hatch spent his entire question time lambasting the arguments Kagan made as Solicitor General defending campaign finance limits in Citizens United v. FEC, and trying to get Kagan to express her personal views on the case. She declined.

“I want to make a clear distinction,” Kagan said, “between my role as an advocate and any opinions I might have as a judge.”

The result was something of a half-hour soapbox for Sen. Hatch to heap praise on Citizens United (and criticize its critics) while Kagan repeatedly distanced herself from the issue. Hatch might want to take a look at our recent poll, which shows that the critics of Citizens United include the majority of Americans.

It’s remarkable that Hatch, who has always spoken so highly of judicial restraint, is so happy to have judges overruling acts of Congress. Apparently he’s changed his opinion on “judicial activism.”

PFAW

Star of the Kagan Hearings is the Corporate Court

Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.

Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:

[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.

Sheldon Whitehouse of Rhode Island took on the Court’s pro-corporate leanings by brilliantly co-opting Chief Justice Roberts’ famous baseball metaphor:

Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control.
There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

Al Franken of Minnesota explained the real impact of campaign finance laws:

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.

And finally, Sen. Richard Durbin of Illinois summed up the retort to any GOP Senator complaining about “judicial activism”:

We've heard from those across the aisle about their support for traditionalism, and their opposition to judicial activism. I have two words for them: Citizens United.

We’re looking forward to hearing a lot more about Citizens United and the Corporate Court as the hearings progress
 

PFAW

Judicial Activism?

In response to the GOP’s repeated accusations of Elena Kagan’s so-called judicial activism, Senator Dick Durbin (D-IL) fired back with a quote from Justice John Paul Stevens’ sharp dissent in Citizens United: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

As Senator Durbin pointedly noted, the Court’s reversal of decades of precedent was “espoused by men who swore they would never engage in judicial activism” – men like Chief Justice John Roberts, who during his own confirmation hearings spoke about how judges are like umpires because they “don’t make the rules, they apply them” and must have “the humility to recognize that they operate within a system of precedent”…and then went on to author the majority opinion in Citizens United. “If that isn’t judicial activism,” said Durbin, “then I don’t know what is.”

And as for the “well-known activist judges” with whom Ms. Kagan has been “associating”, Sen. Durbin spoke out against Republicans’ criticism that Kagan might be a judge in the mold of Thurgood Marshall, for whom she clerked. He instead praised the former justice, citing his critical role in successfully arguing the landmark case of Brown v. Board of Education, and saying that Marshall had changed America for the better. “If that is an activist mind at work, we should be grateful as a nation.”

PFAW

Sessions' Dubious Sources

In Sen. Session’s opening remarks at the Kagan hearings, he lambasted her for association with so-called “activist” judges—including revered civil rights defender Thurgood Marshall, the widely respected Abner Mikva, and the Republicans' new, desperate talking point, Israeli judge Arahon Barak.

Sessions’ choice of words was interesting:

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.

Let’s take a look at who has been describing Judge Barak as the “most activist judge in the world”:

On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak “may be the worst judge on the planet, the most activist,” and argued that Ms. Kagan’s admiration for him is “disqualifying in and of itself.”

Yes, that’s Judge Robert Bork, the ultra-conservative whose Supreme Court nomination was sunk 23 years ago, and has been going to bat against Democratic Supreme Court nominees ever since.

In fact, Barak has done his so-called “activist judging” in a country with no written Constitution, and has received praise from conservative Supreme Court Justice Antonin Scalia.

This isn’t about Barak or about a real threat of “judicial activism”—it’s about Senate Republicans desperately reaching for something to distort.
 

UPDATE: Sen. Jon Kyl is singing the same tune on Barak. Is this really all they have?

PFAW

Fieldtrip to the Heritage Foundation

As a new arrival in DC (I started interning here two weeks ago), I was thrilled to get a chance to visit the Heritage Foundation for the first time on Wednesday. I know everyone here at People For was flattered to learn that the folks on their “Myth of the Conservative Court” panel had been reading our Rise of the Corporate Court report. A lot.

The panelists – Todd Gaziano, Hans von Spakovsky, and Manuel Miranda -- took umbrage at progressive groups like PFAW using the term “judicial activism” because, well, it belongs to them. And they like the decisions being handed down!

Spakovsky argued that progressives have called the Citizens United decision judicial activism merely because we didn’t like the outcome. He’s certainly right that we don’t like it—and neither do 80% of Americans—but we agree that our dislike doesn’t make it judicial activism. What makes it judicial activism is that the Court based its decision on utterly specious Constitutional grounds, overturning over a hundred years of settled law and its own precedent in the process. John Roberts promised to be a baseball umpire, just calling balls and strikes, but as PFAW President Michael B. Keegan pointed out, “in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.”

Much to my shock, Gaziano admitted during the panel that the conservatives on the Court had exhibited pro-corporate judicial activism in one case, Exxon Shipping Co. v. Baker, deciding in Exxon’s favor for subjective rather than purely Constitutional or statutory reasons. So what makes him think that the Conservative judges weren’t influenced by their corporate bias in the other cases outlined in our Corporate Court report?

What was most remarkable about the panel, though, probably wasn’t the contortions that conservatives are willing to go through in order to deny “judicial activism” by conservatives on the Court—it’s that they’re still clearly trying to use it against progressives. That and the lunch they served afterwards. It was delicious.

PFAW

New Statement, Old Points from Sessions

Jeff Sessions is at it again. In a statement following the release of tens of thousands of pages of documents related to Supreme Court nominee Elena Kagan on Friday, Sessions concluded:

Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution. Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner.

Sessions, the top Republican on the Senate committee that will grill Kagan this summer, has apparently decided to stick to the blanket accusation of “judicial activism”—or, as it is now known, “outcomes-based” judging. The idea that conservative judges read the Constitution while liberal judges pull ideas out of thin air was spectacularly disproved by the Roberts Court’s ruling in Citizens United v. FEC, and recently received a thorough takedown from former Justice David Souter. Yet Sessions continues to peddle nonsense about progressive appointees caring more about a “social result” than the Constitution.

And, by the way, when Sessions accuses Kagan of lacking judicial experience, he walks right into a well-documented double standard.
 

PFAW

Advice for Obama from FDR

Jeff Shesol, author of the fascinating Supreme Power: Franklin Roosevelt vs. The Supreme Court, has some advice for President Obama in a new blog post for the American Constitution Society. Shesol argues that Obama can learn a thing or two from Roosevelt’s struggles with an “activist” Supreme Court that was overturning key legislative initiatives to protect individual rights and his success in shifting the frame of the public’s debate on the Court and the Constitution.

It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?

Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.

As Shesol points out, for decades conservatives have dominated the debate over the meaning of the Supreme Court and the Constitution. But in recent months, their talking points have been noticeably loosing credibility. The Roberts Court’s far-reaching decision in Citizens United—in which it went out of its way to upend 100 years of settled law to give corporations the same rights as citizens to influence elections— angered Americans across the political spectrum, and soundly debunked the myth of “judicial activism” as a liberal trait. And the Republican National Committee’s recent attempt to smear Elena Kagan for questioning the perfection of the original Constitution spectacularly backfired when the flaws in their argument became clear.

Americans are clearly ready to embrace a view of the Supreme Court and the Constitution that does not fit neatly into flawed baseball-themed talking points. The debate over Kagan’s nomination provides an opportunity to have that conversation.
 

PFAW

Senator Sessions Plays the “Judicial Activism” Card

At a Senate Judiciary Committee hearing today, Senator Jeff Sessions said that that Goodwin Liu’s writings represent “liberal judicial activism.” And he doesn’t like it!

But what Sessions apparently does like is conservative judicial activism. Overturn more than a century of settled campaign finance law? Limit women’s ability to recover for being discriminated against on their jobs? Hand billions of dollars to Exxon? Rewrite the Voting Rights Act? That’s a-ok! “Liberal judicial activism,” (by which I assume he means opposing those decisions)? Bad.

Senator Sessions’s ability to keep a straight face while delivering such patently farcical attack is impressive. His stale talking points aren’t.
 

PFAW

Meet the Right’s Newest Judicial Codeword

Maybe the Right Wing is finally realizing that after Citizens United, “judicial activism” just doesn’t cut it for slamming judicial nominees who aren’t willing to overturn a century of settled campaign finance law. So they’re trotting out a brand new talking point to fill the void: “outcome based” judging.

CQ-Roll Call highlighted the up-and-coming new meme:

As part of that effort, Republicans beginning this week will look to use some of Obama’s previous lower court picks — particularly the nomination of Goodwin Liu to the U.S. Court of Appeals for the 9th Circuit — as adhering to a liberal, “outcomes-based” philosophy rather than a constitutionalist approach.

What’s it mean? Allow us to translate: “Liberal activist!! Legislate from the bench!! Empathy! Wise Latina!!!! OMG OMG OMG!!!!”

Yes, “outcome based” is just the latest in a long line of virtually meaningless epithets aimed at any judicial nominee who disagrees with the gospel according to Robert Bork.

Is there a debate to be had between different philosophies towards applying the Constitution? Sure. Justice Scalia and Justice Breyer have it all the time. But this isn’t it. In the upcoming confirmation process for Justice Stevens’s successor, the American people deserve a conversation about the Court and the role it plays in the lives of ordinary people. Unfortunately, it seems like the GOP is planning the same warmed-over sound bytes we’ve been getting for years.
 

PFAW

Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

PFAW

Jeffrey Rosen on John Roberts' Judicial Activism

Despite Chief Justice John Roberts’ claims in 2006 that his goal for the Supreme Court was to converge around narrow, unanimous rulings, The New Republic’s Jeffrey Rosen writes that Citizen’s United v. FEC is, “the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.”

The Roberts Court is demonstrating the kind of conservative activism seen during the New Deal, which was met with political backlash by then-president Roosevelt. What could Roberts’ failure to deliver on his goal of judicial restraint mean for the Court? According to Rosen:

 “…contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.”

Maybe Chief Justice Roberts will take Rosen’s concerns to heart, but this is also a reminder as to why it’s important that we fight to confirm fair minded Justices who will stand up to defend core constitutional values.

PFAW

Correcting the Court

Exhibit A from last term of the Roberts Court's conservative judicial activism is the Gross age discrimination case where the Court, in an opinion written by Justice Clarence Thomas, reached out to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. Today, three key Democratic leaders, Senators Tom Harkin and Patrick Leahy and Rep. George Miller, announced plans to introduce a bill to correct the Court's error. As noted in the coverage of the announcement, this is the second time in a year that Congress has reached out to correct the court, the first being the Lilly Ledbetter legislation, the first measure signed into law by President Obama in January of this year.

PFAW

The Writing is on the Wall

The writing is on the wall. As any number of commentators have suggested, it’s pretty clear that no matter whom the President nominates for the next Supreme Court vacancy, the Republicans and their allies on the far right are going to fight. Indeed, as Jeff Toobin points out in his excellent article in The New Yorker, even the President’s mainstream nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals – his very first judicial nominee – continues to languish because of unfounded attacks from the Right. As one White House official is quoted by Toobin: ‘If they are going to stop David Hamilton, then who won’t they stop.” 

As suggested in Toobin’s article, the Republicans claim it’s payback for the President’s votes against Chief Justice Roberts and Justice Alito.  But as history is showing us, then-Senator Obama’s votes were the correct ones. The Roberts court is Exhibit A in far right judicial activism – not the balls and strikes umpiring we were promised by the Chief Justice.  In any event as Republican Senator Thune makes clear in yesterday’s Roll Call article, the only way for the President to avoid a fight is for him to nominate a conservative – anything else would meet significant resistance.

So the cards are on the table. If we’re going to have a fight, then let’s think boldly about the kind of Justice we need on the Court. And that means a Justice who understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It means a Justice who understands that the law and the Constitution protect important privacy rights. It means a Justice who appreciates that the law and the Constitution affect the realities of Americans’ everyday lives.  It means a Justice who respects the core constitutional values of justice and equal opportunity for all.  If we’re going to have a fight, let’s make it one worth having – let’s make it a fight for core constitutional values.

PFAW

Rosen on Roberts

Jeffrey Rosen’s op ed piece in the New York Times over the weekend, The Trial of John Roberts, echoes a theme noted by a number of commentators, one on which I posted last week: that the Supreme Court’s decision to open up long-settled law with respect to regulating corporate expenditures in candidate elections in the recently argued Citizens United case is a quintessential exercise in judicial activism. And it’s the kind of judicial activism that then nominee John Roberts pretended to foreswear through his claims to be an umpire, simply calling balls and strikes.  

Where I part company from Rosen, however, is in his analysis that Chief Justice Roberts “deserves credit for trying” to forge a broader consensus on narrower grounds, citing, in particular, last term’s Voting Rights Act case.  The cynic in me says that the decision was 8-1 to uphold Section 5 of the Voting Rights Act and not 5-4 to overturn it, because the Chief Justice simply did not yet have the votes to do so. And Rosen’s reliance on greater unanimity on the Court with respect to upholding business interests – according to the Chamber 79% of these cases decided on margins of 7-2 better – is not, in my view, a reflection of Chief Justice Roberts’ forging consensus on narrow grounds. It’s a reflection of how conservative this Court really is, why the judicial philosophy of the next nominee to the Supreme Court really matters, and why it’s important to begin having that discussion now.

PFAW

Judicial Activism and Horne v. Flores

Given all the recent talk from the Right about judicial activism, it was pretty amazing to see Justice Alito's contortions in Thursday's decision in Horne v. Flores that gave the Arizona School Superintendent one more shot at justifying what seems to be a flawed approach to helping its English language learners overcome language obstacles.  The crux of the case, as Justice Breyer noted in his dissent, was that the graduation rate and test scores of English language learners in the Nogales Unified School District were significantly below that of the rest of the student body and the record demonstrated that this was because adequate resources were not being made available to address these students' needs.

Justice Alito thought the lower court was being too protective of the students and that the case should be sent back for a re-do. He was not able to reach this result by concluding that compliance with the more lenient No Child Left Behind Act satisfied the higher standards of the Equal Educational Opportunities Act of 1974 – because a fair reading of the statutes would not permit such a conclusion. He resorted, therefore, to an in-depth, soup to nuts, re-examination of the detailed lower court findings, substituting his judgment for that of the courts below, without the deference traditionally accorded lower courts in this situation.  He also, as the dissent pointed out, reached out to consider claims not even raised or considered below.  Indeed, one of those claims Justice Breyer characterizes as "[springing] full-grown from the Court's own brow, like Athena from the brow of Zeus."  The result of all this, in Justice Breyer's view:  it will now be far more difficult for federal courts to enforce standards designed to support non-English speaking school children.

This result is troubling. And how the Court got there is equally troubling. Indeed, it’s the same kind of "unabashed display of judicial lawmaking" we saw in last week's decision in Gross v. FBL Financial Services.

PFAW

Wendy Long May Have More in Common with Sotomayor Than She Thought

If you’ve been following the nomination of Sonia Sotomayor to the Supreme Court, the term “reverse-racist” has undoubtedly appeared in a story you’ve read. Rush Limbaugh branded Sotomayor a ‘reverse-racist’ on his radio show, while Newt Gingrich labeled her a racist when he posted a statement on his Twitter account.

Some right wing groups claim that Sotomayor is a judicial activist who will bend the law based on her own personal views.

Wendy Long of The Judicial Confirmation Network, a conservative-leaning organization involved with judicial nominations, sent a letter to Senators yesterday outlining these concerns:

“Judge Sotomayor challenges the belief that the law needs to be knowable and predictable . . .” 

Long accused Sotomayor of embracing judicial activism, and claims that “when judges drive such change, based not on the written Constitution and laws enacted by the people, judges use their own sense of personal "justice," based on their own experiences, personal views, feelings, and backgrounds.”

Sadly, the facts get in the way of Long’s argument. Take, for instance, Sotomayor’s ruling in the case of Pappas v. Giuliani. In short, the case involved Thomas Pappas, an employee of the New York City Police Department, who was fired for mailing racially offensive, anonymous letters to organizations that had solicited him for donations.

A reverse-racist, judicial activist, such as Sotomayor, must have ruled in favor of the city, claiming that Thomas violated the rights of others through his offensive remarks, right?

Wrong. It turns out that Judge Sotomayor did exactly what Wendy Long would have wanted―she made her ruling based “on the written Constitution and laws enacted by the people.” Citing the NYCLU’s briefing on the case, Sotomayor and her Second Circuit panel concluded that: 

“The reduced free-speech protections accorded to public-employee speech related to the workplace also extended to private and anonymous speech by employees that took place away from the workplace and that was unrelated to the workplace” 

 Rather than let her personal beliefs get in the way of her ruling, Sotomayor upheld one of America's oldest laws by defending a bigot’s right to be a bigot.

PFAW