Conservative Judicial Activism Regarding Race Conscious Remedies

David Kirkpatrick of the NYTimes writes one of the more remarkable (in a bad way) articles yet on Judge Sonia Sotomayor. Kirkpatrick writes:

The selection of Judge Sonia Sotomayor for the Supreme Court has opened a new battle in the fight over affirmative action and other race-conscious remedies for patterns of inequality, with each side invoking the election of the first black president in support of its cause.

Really? Why would that be? Actually what the Sotomayor nomination truly highlights is the wholesale adoption of judicial activism by extreme conservatives to roll back through judicial means race conscious remedies enacted by the elected representatives of the people. The champion of this judicial activism is none other than Chief Justice John Roberts. More . . .

Kirkpatrick writes:

[C]onservatives say [Sotomayors'] strong identification with . . . race-based approaches to the law is perhaps the strongest argument against her confirmation, contending that her views put her outside an evolving consensus that such race-conscious public policy is growing obsolete.

. . . [M]any civil rights groups say, Judge Sotomayor’s confirmation could provide an anchor against the current direction of the Supreme Court under Chief Justice John G. Roberts Jr., who has led the more conservative bench toward a sweeping re-examination of government reliance on racial classifications, whether in school desegregation plans or landmark voting rights laws. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts wrote in 2007, summing up his approach in one of the most memorable lines of his opinions.

(Emphasis supplied.) Who elected Chief Justice Roberts to decide these questions? These are best left to the elected bodies. Indeed, the Constitution demands such an approach. Certainly, an honest advocate of judicial restraint would say so. But extreme conservatives like Chief Justice Roberts are not judicial minimalists or advocates for judicial restraint. They are instead brazen judicial activists, unable to respect the Constitution, the decisions of the elected representatives of the people and instead are intent on dictating policy on these issues. The era of extreme conservative judicial activism, a new era of conservative Lochnerism, is upon us. And its leader is Chief Justice John Roberts, as extreme a judicial activist as has been seen on the Court for some time.

Consider this from Kirkpatrick's article:

Samuel Issacharoff, a professor at New York University Law School, said, “There is a tendency to say ‘The time has run, things are different, change has happened,’ ” adding, “It is an emerging theme of the Roberts court.”

(Emphasis supplied.) It is for the elected officials in the country to determine "the time has run" to address racism in our society. It is decidedly NOT the province of the Court. Only a brazen judicial activist would decide that it was proper for the Court to dictate policy issues that are clearly and expressly the province of the Congress and other elected bodies.

But the extreme conservatives are demanding judicial activism on the issue:

“[Sotomayor's] nomination and the Ricci case have brought racial quotas back as a national issue," said Mr. Marx of the Judicial Confirmation Network.

May I suggest that if people like Mr. Marx feel this way, that the place to fight that battle is in the Congress. After all, the Riccci case involved a federal law - Title VII of the Civil Rights Act. After all, Section 5 of the Fourteenth Amendment to the Constitution states:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Originalists, textualists and advocates of judicial restraint should be able to understand the plain meaning of that text -- it is up to the Congress, NOT the Court, to determine when "the time has run." Chief Justice Roberts and his cohorts in extreme conservative circles have no respect for the Constitution. They will seek to impose their preferred policies no matter what the plain text of the Constitution says.

Speaking for me only

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    What the Court said about Title VII (5.00 / 1) (#1)
    by Big Tent Democrat on Sat May 30, 2009 at 06:55:59 PM EST
    in Griggs:

    "The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove [401 U.S. 424, 430]    barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices."

    The Congress never altered this understanding.

    Only a judicial activist could think it was the province of the Court to alter a federal statute to their liking.

    Chief Justice Roberts and his cohorts are those people.

    Link (none / 0) (#2)
    by Big Tent Democrat on Sat May 30, 2009 at 06:57:20 PM EST
    to a unanimous Court's opinion in Griggs.

    Superbly said, BTD (5.00 / 2) (#9)
    by gyrfalcon on Sat May 30, 2009 at 07:28:05 PM EST
    (clap, clap, clap, clap!)

    And once again, the Kirkpatricks of the world have failed to look at her entire judicial record.  Somebody (wish I had a link, but I don't) recently did an analysis of her decisions on similar issues and found that she has overwhelmingly NOT supported them, presumably largely for procedural and legal reasons. She, in fact, appears to be about 180 degrees from some fantasy about "judicial activism" on race matters or anything else, but someone who takes the nicesties of the law (gasp!) quite seriously.

    Actually, I'd prefer a SC nominee a little more willing than she appears to be to consider a little "judicial activism."

    SCOTUSblog (none / 0) (#14)
    by nycstray on Sat May 30, 2009 at 07:59:05 PM EST
    is what I've been hearing last night and today. Pulled something like 100 cases "related" to race and had read through over half. While they were "related" to race, it wasn't about race directly (iirc). And yes, they were mostly procedural rulings (again iirc :) )

    I saw this article in the NYT, read the headline and decided it was too nice a day to read about her "race issues".


    I'm sorry I clicked (5.00 / 2) (#19)
    by Maryb2004 on Sat May 30, 2009 at 08:15:28 PM EST
    through to that article. Every time I read that Roberts' quote from Parents Concerned my blood pressure rises.

    Conservatives and Republicans (5.00 / 1) (#24)
    by Anne on Sat May 30, 2009 at 08:30:23 PM EST
    have to be among the most territorial of creatures, and it's clear that what is happening now is a virtual circling of the wagons to protect "their" Court; the reality of Souter's retirement has shaken their complacency, and sent them into overdrive.

    A unique lexicon goes with the territory.  To them, an "activist" judge is one who threatens a shift in the way they like the votes to come down.  You know, kind of how they think "bipartisan" means, "doing it our way."  It's why they have no problem with Roberts operating outside the lines - they think he's right, and that's all that matters to them.

    These thinly disguised attacks on Sotomayor, loaded with code and dog whistles, are pretty similar to what the insurance lobby is doing relative to health care reform: sending out all kinds of scary messages to put people off single-payer, or any public option at all.  There's a lot of subtle and not-so-subtle messaging on Sotomayor, too: "these kinds of people" threaten to marginalize the rest of us, and Sotomayor will have the power to make it the law of the land.

    It's all about playing to people's fears, and in Sotomayor, they have found a lot to work with: she's female and she's Latina.  And it's going to get worse before it gets better, if it even does get better.  I'm just hoping that when she appears before the Judiciary Committee, I will actually hear something that reassures me that she will be the kind of justice I think we need on the Court.

    Jeez (5.00 / 2) (#29)
    by cal1942 on Sat May 30, 2009 at 08:52:17 PM EST
    The Conservative noise about opposing judicial activism is the height of hypocrisy given that a  Fedalist Society goal is to roll back the New Deal via judicial decision.

    Stevens certainly agrees with you (none / 0) (#3)
    by andgarden on Sat May 30, 2009 at 07:10:48 PM EST
    The Supreme Court is just politics by other means.

    Of course it is (5.00 / 2) (#4)
    by Big Tent Democrat on Sat May 30, 2009 at 07:12:52 PM EST
    But this is an egregious example. It violates all of the most basic tenets of judicial interpretation.

    It is brazen lawlessness by the Court, led by the extreme conservative judicial activist John Roberts.


    They did the same thing (5.00 / 1) (#5)
    by andgarden on Sat May 30, 2009 at 07:18:04 PM EST
    with crossover congressional districts, and will likely do so again with section 5 of the VRA.

    This is an extreme court.


    A judicially activist extreme Court (5.00 / 1) (#6)
    by Big Tent Democrat on Sat May 30, 2009 at 07:22:35 PM EST
    The 2000 election and the Bush v. Gore (5.00 / 1) (#7)
    by andgarden on Sat May 30, 2009 at 07:24:55 PM EST
    decision were disasters that we can't completely undo. Not unless you want to pack the Court (and yes, I would be open to that).

    It would be Constitutional (none / 0) (#8)
    by Big Tent Democrat on Sat May 30, 2009 at 07:27:33 PM EST
    but unwise imo.

    The threat of it (5.00 / 2) (#10)
    by andgarden on Sat May 30, 2009 at 07:29:12 PM EST
    Might cause Roberts to temper his activism.

    Interesting thought (5.00 / 2) (#13)
    by Big Tent Democrat on Sat May 30, 2009 at 07:36:13 PM EST
    Obama is no FDR, certainly on this issue.

    But pack the court in what way (none / 0) (#27)
    by cal1942 on Sat May 30, 2009 at 08:46:31 PM EST
    There seems to be a variety of definitions of "packing."

    What FDR proposed in 1937 included automatically adding a justice whenever a sitting member exceeded the age of seventy. That's my understanding of "packing," an open ended number, no fixed number.

    I don't see anything wrong with Congress adding an additional justice.  It's been done before.  The original court had six justices.  The number was reduced to five at one time and in the latter part of the 19th century there were 10 justices.

    I don't see the latter cases as packing.

    I can however see why you consider adding justices unwise.  Adding justices indiscriminately by the party in power could result in a chaotic court with many justices and a loss of its standing as a co-equal branch of government.


    If you don't regard Bush v. Gore as legitimate (none / 0) (#11)
    by lambert on Sat May 30, 2009 at 07:29:58 PM EST
    then how can you regard the Court that Bush chose as legitimate?

    Or to put this another way, IMNSHO Scalia wrote the decision he did to make sure that court picks he wanted would be made, so the court would shift in the direction he preferred.

    Why should I reward that


    Some people don't regard the 1876 election (none / 0) (#12)
    by andgarden on Sat May 30, 2009 at 07:32:08 PM EST
    as legitimate. Would you peel the onion back that far?

    the roberts ilk (5.00 / 2) (#15)
    by sancho on Sat May 30, 2009 at 08:10:34 PM EST
    basically views 1954 and then 1964 AND 1965 as invalidating the compromise of 1876, which invalidated the unfortuante compromise of april 1865. look away, look away . . .

    I think it's fair to say (5.00 / 2) (#20)
    by andgarden on Sat May 30, 2009 at 08:16:43 PM EST
    that 4-5 members of today's Court are in sympathy with the southern manifesto.

    In a way (none / 0) (#17)
    by Big Tent Democrat on Sat May 30, 2009 at 08:11:33 PM EST
    I agree with this comment.

    The end of Reconstruction did in fact reopen the debate we continue to this day.


    So, I guess my answer is No... (none / 0) (#41)
    by lambert on Sun May 31, 2009 at 05:44:24 PM EST
    ... but since the Conservatives have already answered Yes -- and seized the Court to put their views into law -- who am I to argue?

    What Can True Liberals Do? (none / 0) (#16)
    by Sweet Sue on Sat May 30, 2009 at 08:10:47 PM EST
    How can liberals-not progressives, please-create our own Federalist type Society to combat these "memes" (God, how I hate that word) and move the cheese from far center right to the middle and, oh please, left of cener?

    Honestly (5.00 / 4) (#18)
    by Big Tent Democrat on Sat May 30, 2009 at 08:13:12 PM EST
    I am more than a little disappointed with the "progressive legal community" on these issues.

    They are wimps.

    They did not like the way I write about these things. They still insist on pretending Scalia is some type of intellectual giant.

    It bothers me no end.


    Can I tell you something (5.00 / 5) (#21)
    by andgarden on Sat May 30, 2009 at 08:18:27 PM EST
    I had occasion to reread Scalia's dissent in Romer v. Evans the other day.

    I concluded that he is not an individual fit to be either in our highest Court or in my presence. He's really quite evil.


    I'm sorry, (5.00 / 2) (#28)
    by andgarden on Sat May 30, 2009 at 08:48:52 PM EST
    but hate drips off the page in his Romer dissent. You won't convince me otherwise.

    He also disregards (none / 0) (#33)
    by BackFromOhio on Sat May 30, 2009 at 10:56:04 PM EST
    the notion of conflicts of interest

    You might not define him as evil, but he is, (none / 0) (#35)
    by DeborahNC on Sat May 30, 2009 at 11:14:59 PM EST
    undoubtedly, a BULLY! By definition, bullies overwhelmingly operate through the use of POWER and CONTROL to achieve the results they want. Notably, bullies forcefully exert their will by intimidation and other meanacing tactics. Through an overbearing manner and domineering speech, they can be a threatening presence within a group.

    With a lifetime appointment to the highest court in the country, justices on the Supreme Court inherently wield immense power. Scalia might not be considered evil by you and others, but the word 'evil' is highly subjective, and therefore renders it open to interpretation, depending on one's perspective. For instance, andgarden saw evil within a judicial dissent, yet you equate evil with figures like Hitler and Pol Pot. That doesn't make either of you wrong.

    Irrespective of the label, imo, his demeanor and views are not appropriate for a sitting Supreme Court justice.


    This may sound silly but (5.00 / 1) (#37)
    by sallywally on Sat May 30, 2009 at 11:46:48 PM EST
    I don't believe someone can be seen as an "intellectual giant" while lacking a broad enough perspective to consider the wide sweep of reality and the full ramifications of their views.

    Real intellect isn't just some sort of cold reasoning, regardless of what sociopathic Republicans may think. Cold and objective aren't the same thing. Cold is restricted, narrow, but objective considers all relevant data, including the whole of reality and the long-term effects of one's views, choices and actions.


    They are wimps in the face (none / 0) (#34)
    by BackFromOhio on Sat May 30, 2009 at 11:02:25 PM EST
    of an opposition that has only 24% popular support.  I don't get why Dems in Congress are wimps on "judicial activism", this nomination, etc. or why the media gives so much airtime to the 24% -- just to stir up noise?  Why, with the majorities Dems have and the public support for progressive initiatives and Sotomayor, are they so silent?

    They're not wimps, but enablers (none / 0) (#42)
    by lambert on Sun May 31, 2009 at 05:45:48 PM EST
    Since the policy outcomes are as the Dems prefer, they are quite happy to let the Republicans do the heavy lifting.

    Watch your language (none / 0) (#23)
    by caseyOR on Sat May 30, 2009 at 08:26:57 PM EST
    It causes Jeralyn trouble with the filters at law firms. So, no cursing, please.

    Incredible, just incredible! (none / 0) (#26)
    by NYShooter on Sat May 30, 2009 at 08:45:43 PM EST
    Judge Sonia Sotomayor is so eminently qualified that this whole discussion is an embarrassment, and blight, on our claim of being a decent, representative democracy.

    If I had to make one criticism of Ms. Sotomayor it would be that she is so far over-qualified, compared to her would-be colleagues that the only direction for her future is down. If a single bad apple can spoil a barrel of fresh ones, is the reverse also true? Can a single fresh apple resuscitate a barrel of spoiled ones?

    If the adage used by feminists, "a woman has to work twice as hard to get half as far," is true, adding a non-Anglo Saxon heritage makes any advancement impossible.

    Stop! Just stop playing this racist, sexist, disgusting game. If ever a nominee, of any background, should be confirmed by voice vote, and acclamation, it is the Honorable Judge Sonia Sotomayor.  

    After the election, I imagined it would be fun (none / 0) (#30)
    by shoephone on Sat May 30, 2009 at 09:46:49 PM EST
    to witness just how hysterical conservatives would get about everything, but now that it's happening I find no joy in it at all --- only more disgust.

    Clarence Thomas was the one and only blatantly affirmative action pick for the SCOTUS I can think of. He was always particularly unqualified for the high court.

    I can't wait to see Sotamayor put these a$$holes in their place during her hearings. And when they get nasty, I very much doubt she'll accuse them of conducting a high-tech lynching, or any other such thing. Prolly 'cuz she knows how to argue the law.

    SP, I'm not sure what you mean by your comment (5.00 / 1) (#32)
    by FoxholeAtheist on Sat May 30, 2009 at 10:43:58 PM EST
    that Clarence Thomas was a "blatantly affirmative action pick for the SCOTUS".

    However, it's quite likely that Bush (the elder) deliberately picked an arch conservative, underqualified judicial activist who was a person of color. The idea being that Democrats wouldn't oppose Thomas for fear of being deemed racist and anti-affirmative action.

    Setting aside the issue of qualifications, it's my belief that Bush the younger was thinking along those same lines when he appointed Rice and Powell to do some of his most nefarious dirty work.



    You are right on both accounts (5.00 / 1) (#38)
    by shoephone on Sun May 31, 2009 at 12:39:47 AM EST
    I was being a bit sarcastic, but only a bit. IMO the Thomas pick was overtly racial, and the fact that he was not qualified presented a huge dilemma for Dems. Of course, then the Anita Hill accusations were brought out by Nina Totenberg and all he!l broke loose. The Senators -- especially the Repubs -- showed their true misogynistic colors. The "high-tech lynching" comment cast a pall over everything, and no one wanted to say, "But wait a minute - the man is seriously unqualified."

    At least that's the way I remember it. And I've not trusted that b.s. artist, Arlen Specter, since.

    Seventeen years later, with the Sotomayor pick, the misogyny still reigns supreme.


    Well, he knowingly put Bush and Cheney (none / 0) (#36)
    by sallywally on Sat May 30, 2009 at 11:29:00 PM EST
    into power (he and four others, including Sandra Day O'Connor), and considering the result of that, he is responsible for a lot of evil that has hit the USA and the world in the past 8 years... arguably including 9/11.

    Does anyone know if Scalia and Cheney were friends prior to Bush v Gore?

    Doublespeak. (none / 0) (#39)
    by oldpro on Sun May 31, 2009 at 01:23:59 AM EST

    i think i'm confused. (none / 0) (#40)
    by cpinva on Sun May 31, 2009 at 01:52:10 AM EST
    obama being elected president is supposed to denote the end of discrimination?

    "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,"

    i couldn't agree with justice roberts more, really. if and when that event occurs, and the country becomes just one, big (albeit dysfunctional) family, i'll be happy as a clam. really, i will.

    unfortunately, for both justice roberts and i, that time will not see either of us still alive. until then, it is up to us, in the form of our government, to keep the worst angels of our nature at bay, legislatively if necessary, until non-discrimination becomes the norm.

    Not activist if laws conflict (none / 0) (#43)
    by diogenes on Sun May 31, 2009 at 11:12:25 PM EST
    If a state legislature passes a law that conflicts with federal civil rights law, it isn't activist to overturn.  It simply is preferring one law to another.  Interpreting legislatively passed constitutional amendments and civil rights laws as being inconsistent with affirmative action is the job of any court.  Overturning the legislature's actions based on things like penumbras or empathy is activist.