The myth of conservative Supreme Court: the October 2000 term.

• Author: Graglia, Lino

1. JUDICIAL ACTIVISM II. THE NATURE AND SOURCE OF CONSTITUTIONAL LAW III. THE LIBERAL ACTIVISM OF THE REHNQUIST COURT IV. CONSERVATIVE ACTIVISM BY THE REHNQUIST COURT A. Bush v. Gore B. Racial Preferences C. Federalism D. Regulatory Takings V. THE PREDOMINANTLY LIBERAL ACTIVISM OF THE OCTOBER 2000 TERM A. Search and Seizure B. Freedom of Speech C. Immigration D. State Action E. Statutory Interpretation VI. IN SUM: STILL A PREDOMINANTLY LIBERAL ACTIVIST COURT It is an article of faith in legal academia and the liberal media that the "Rehnquist Court," the present Supreme Court, is extremely conservative. "[C]onservative judicial activism is the order of the day," NYU law professor Larry Kramer bitterly complains in the New York Times: "The Warren Court was retiring compared to the present one." (1) University of Chicago law professor Cass Sunstein concurs in another New York Times article, writing that "[w]e are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals." (2) These assertions tell us more about legal academia and the media than they do about the Court. The Court's liberal critics are correct that it continues to be activist, but its activism, contrary to their assertions, continues to be predominantly activism of the left. If Professor Sunstein does not find Justices Stevens, Souter, Ginsburg, and Breyer to be liberals, it is difficult to see what more they would have to do to meet his definition.

1. JUDICIAL ACTIVISM

   The phrase "judicial activism" is subject to different usages, some confusing and inconsistent. Most generally, it means judges making rather than following the law. In the constitutional context, where it is most important because the decisions are hardest to change, it can most usefully be defined as judges disallowing as unconstitutional policy choices made in the ordinary political process that the Constitution does not clearly disallow--"clearly" because in a democracy the judgment of elected representatives should prevail in cases of doubt. Rulings upholding constitutionality demonstrate not activism, but restraint, a willingness to permit the policy choices made in the political process to prevail. Another reason such rulings--at least apart from the question of the scope of the federal government's enumerated powers--are rarely activist is that they are almost always legally correct because our short and simple Constitution wisely precludes very few policy choices, almost none of which American legislators would otherwise make.

   Nor should it be considered activist--it is anti-activist--for a court to overrule a prior activist decision, returning the issue to the political process. Rulings of unconstitutionality give the prevailing party a positive victory, the adoption of a policy preference it failed to obtain in the ordinary political process, while the losing party has its political victory taken away. Rulings upholding constitutionality simply leave things as they were. For practical purposes, the extent and nature of a court's constitutional judicial activism is best determined by considering only its rulings denying, not its rulings upholding, constitutionality and comparing liberal and conservative victories.

2. THE NATURE AND SOURCE OF CONSTITUTIONAL LAW

   Our constitutional law of the past half-century, beginning with the Warren Court, has had two defining characteristics. First, it has had very little to do with the Constitution: the bulk of rulings of unconstitutionality involved state, not federal, law and nearly all of those purported to turn on a single constitutional provision, the second sentence of the Fourteenth Amendment, and ultimately on no more than the words "due process" or "equal protection." (3) Scholarly debates on methods of constitutional interpretation are essentially irrelevant and at best misleading, because ordinarily there is little for a court to interpret. What was the Court interpreting in Roe v. Wade, (4) for example: the word "due" or the word process"? As developed by the Court, the Due Process and Equal Protection clauses are not substantive provisions of law, but simply grants to the Court of unlimited lawmaking power.

   The second characteristic of the Warren Court's decisions and later rulings of unconstitutionality is that they almost uniformly adopted the liberal position--the position favored by, say, the American Civil Liberties Union--on the policy issue involved. It is no coincidence that on virtually every issue of basic social policy--abortion, capital punishment, criminal procedure, prayer in the schools, government aid to religious schools, public display of religious symbols, compulsory busing to increase school racial integration, redistricting, pornography, libel law, street demonstrations, vagrancy control, discrimination on the basis of sex, legitimacy or alienage, and so on--the Court overturned the policy choice made in the ordinary political process, usually at the state level, only to impose on the nation a choice farther to the left-liberal side of the American political spectrum. The Court has fundamentally changed the nature of our society, remaking it in its own image, the image of liberal academia and particularly legal academia. (5)

   The Warren Court not only worked a social revolution, but even more important, fundamentally changed the understanding of the American people, and most important, of the judges themselves, of the role of courts in the American system of government. Its successor, the Burger Court--with four Nixon appointees--to the surprise of most observers proved to be, as the title of a well-known book on the subject suggests, "the counter-revolution that wasn't." (6) Not a single one of the Warren Court's revolutionary decisions was reversed, not Miranda, (7) not its decisions on prayer in schools, (8) on pornography, (9) and so on. Instead, the Burger Court not only accepted the Warren Court's innovations as if written into the Constitution, but embarked on a series of revolutionary innovations of its own. It was the Burger, not the Warren, Court that made abortion a constitutional right, (10) required busing for school racial balance, (11) and first disallowed almost all legal distinctions on the basis of sex (12) or alienage. (13)

   Conservative activism comparable to the Warren and Burger Courts' liberal activism would require a Court to continue to make rulings of unconstitutionality freely, but now to move policy choices to the right. At the very least, a conservative court would overrule some of the results of its predecessors' liberal activism, returning the issues to the political process. That would be ideologically neutral anti-activism, though the result would be to rescind some prior liberal victories. Very little of the first and almost none of the second of these things has happened; constitutional law has proved to be a one-way ratchet, moving the nation consistently, though at varying speeds, in the liberal direction.

3. THE LIBERAL ACTIVISM OF THE REHNQUIST COURT

   The actual performance of the Rehnquist Court (14)--which has continued unchanged for an exceptionally long time, since President Clinton' s appointments of Justices Ginsburg and Breyer in 1992--has proven to be much the same as that of the Burger Court. With few exceptions, discussed below, it has not given conservatives positive victories by means of rulings of unconstitutionality comparable to the victories given liberals by the Warren and Burger Courts. Nor has it undertaken to rescind some of the liberal victories by overruling some of its predecessors' controversial decisions; on the contrary, it has accepted those decisions as legitimate additions to the Constitution, available as springboards for further liberal advances.

   A positive victory for conservatives on the abortion issue would be a decision not merely overruling Roe v. Wade, but one holding that the fetus is constitutionally protected. Even overruling Roe v. Wade and returning the issue to the political process has proved to be more, however, than opponents of abortion have been able to obtain from the Rehnquist Court. On the contrary, the decision has been not only reaffirmed, (15) but also extended to disallow state restrictions on even so-called partial-birth abortions. (16)

   Similarly, a positive conservative victory on the issue of prayer in the schools would be a decision that the states not only may, but must make some provision for voluntary prayer in the schools. The Rehnquist Court not only has refused to overrule the anti-prayer decisions, but also has extended the prohibition to a student-composed nonsectarian reference to the deity at a high school graduation. (17) The most controversial current issue in the Court-led egalitarian crusade of the past half-century is the issue of discrimination on the basis of homosexuality. While the Burger Court refused, albeit only by a five to four vote, to grant homosexuals the status of a specially,protected class, (18) the Rehnquist Court has put that conclusion in doubt by holding that the people of Colorado could not amend the Colorado constitution by referendum to disallow special protection for homosexuals. (19)

   Far from rejecting or even relaxing the Burger Court's prohibition of distinctions on the basis of sex, the Rehnquist Court ratified and strengthened the prohibition of single-sex schools by extending it to military schools. (20) Similarly, the citizens of several states who fought and won political battles to impose term limits on federal representatives saw the victory taken away when their opponents had the issue decided by the Supreme Court. (21) The Miranda decision, virtually a synonym for liberal activism, decided by a five to four vote over a powerful dissent, was long considered a prime candidate for overruling by a conservative Court. The Rehnquist Court has not only refused to overrule it, but emphatically...