Your eyes are not deceiving you. My title begins with the name of a prominent conservative commentator, now offering op eds at The New York Times. After the colon? That is the title of his Times piece today And he is applying in terms of two of the highest profile cases before the U. S. Supreme Court this term, the just released decision on the Voting Rights Act, and the forthcoming decision in the Ricci case on affirmative action.
Take this op ed. Print it out and save it electronically, because it makes clear how activist the conservative members of SCOTUS can be when it suits them, and as Ponnoru notes, this is especially true on matters of race. I know I will be using this column in teaching my Advanced Placement students this forthcoming year.
Come below the fold for just a few examples of what Ponnuru says, followed by a few additional thoughts of my own.
Ponnuru makes his argument in the context of the approval process for the nomination of Sonia Sotomayor to the Supreme Court, especially relevant since she was a member of the 3-judge panel in the Circuit decision in Ricci v New Haven, in which a decision is yet to be rendered.
In the Voting Rights Act case from Texas, just released, Ponnuru notes that Clarence Thomas, perhaps the strongest originalist on the current Court, was alone in arguing that
was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed.
While Ponnuru agrees that the law is outdated, but notes the decision is not his, or that of the Court, since
Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it.
And from an originalist standpoint, Ponnuru is quite blunt, noting the lack of any discussion of the intent of the drafters of the 15th Amendment, whose second clause, upon which the Voting Rights Act is based, reads :
The Congress shall have power to enforce this article by appropriate legislation.
It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary. The occasion for the amendment was, after all, the end of a civil war brought about in significant part by judicial overreaching in the Dred Scott case.
Ponnuru then gives the background of the Ricci case, including the participation of Sotomayor on the 3-judge panel that rejected the firefighter's appeal. While thinking that on his merits Ricci deserved the promotion, Ponnuru writes appropriately
But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position, as for the invalidation of the Voting Rights Act, are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments.
While I doubt that will stop Thomas and perhaps several others from ruling in Ricci's favor, Ponnuru is correct in noting that to support Ricci one has to argue that in drafting the 14th Amendment the Congress intended a policy of strict color-blindness by state and local governments for which the evidence is so weak that for Conservatives addressing issues flowing from the Equal Protection Clause,
originalist analysis has been notably absent from their opinions in affirmative-action cases.
The next paragraph is key:
Judicial restraint has also been absent. That virtue is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by "judicial activism."
Ponnuru concludes by reminding people that not every legal wrong has a judicial solution, and hammers home this point in his final two sentences:
When President Obama has talked about empathy on the bench, conservatives have responded that, given free rein, it can lead judicial reasoning astray. On race, unfortunately, we are illustrating our own point.
My commentary on this is from the perspective of one who teaches adolescents. First, I think the entire approach of "originalism" is more than a little flawed. I have always found it ironic that members of the Federalist Society hold up as their hero John Marshall, who while a Federalist, was hardly one easily categorized as either a strict constructionist or one who used loose/broad construction in his interpretations. Certainly his insistence on the constitutional limitation of original jurisdiction in declaring part of the Judiciary Act unconstitutional in Marbury seems on its face to be strict constructionist. But that is the only case during Marshall's long tenure that an act of Congress was declared, even in part, unconstitutional, the next such ruling being that of Taney with respect to the Missouri Compromise in the Dred Scott case. In fact, one might well argue that some of his other rulings, such as his interpretation of both the Commerce Clause in Gibbons v Ogden and the elastic clause in McCulloch v Maryland are sweepingly broad. A Federalist believing in the importance of the powers of the national government would certainly support both, but I doubt the argument could be made either on the basis of originalism or strict interpretation of the text.
Justices are human beings. Perhaps it is because as one of Jewish background I have an awareness of Talmudic reasoning that I am aware that those making legal rulings can find creative ways of legally justifying a decision they believe needs to be made. I think we have seen this in rulings from the left as well as those from the right. And in that sense the idea of empathy becomes important, as does one's view of the purpose of law and constitution. If one is empathetic towards business owners but not workers or customers one needs to be careful that the "finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments" not be too heavy.
Further, justices usually prefer to argue that they are remaining within the framework of precedent to avoid being charged with outright activism. Thus Brown did NOT overturn Plessy, instead arguing that segregated public schools are inherently unequal and thus could not meet the test of Plessy. While if we agree with the outcome we might applaud the creative argument that enabled the Court to reach a unanimous decision, we should note that a similar method of arguing has been used to gut the rights granted in Roe while ostensibly leaving the decision in place. Perhaps in that case the intellectually honest thing might have been to argue, as some Conservatives have, that Roe was wrongly decided and should be overturned. After all, in 1943 Robert Jackson wrote the opinion of the Court in a 6-3 decision in Barnette that overturned an 8-1 decision from 3 years earlier in Gobitis
I would be interested in seeing how the reasoning Ponnuru offers plays out in a case involving the Defense of Marriage Act. One can argue that on an originalist basis either way - the Founders had no concept of same sex marriage, but wrote in the context of monogamous and heterosexual marriages. And yet, the Full Faith and Credit Clause seems to clearly argue that the proper legal acts of one state must as a matter of constitutional principle be recognized by the other states. Our practice on this, however, has not been consistent - one need only look at the history of anti-miscegenation laws to see examples. And Mitt Romney was able to rely on a Massachusetts statute that had never been overturned when he ordered clerks not to issue licenses to out of state same sex couples when that state's Supreme Judicial Court ruled that the state's constitution did not allow restricting marriage licenses to heterosexual couples.
It will be interesting to see what if any pushback other conservatives give to this thoughtful piece by Ponnuru. I just wanted to be sure that people gave it a look.