Stuart Taylor: Conservative Roberts Court Is Judicially Activist

UPDATE - See also Daphne Eviatar, Scott Lemieux, and Lean Left.

I wonder if this obvious fact will now break through to the Media. I have written over and over that Chief Justice Roberts has proven to be the most brazen judicial activist the Court has seen in some time. Now conservative legal commentator Stuart Taylor is saying the same thing:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.

No kidding. Now will the Media feel it is acceptable to report this obvious fact? That Roberts and his cohorts are NOT "moderate" and "modest?" That instead they are brazen, extreme conservative judicial activists? More . .

Taylor also demonstrates the conservative view of "judicial activism" - it's bad when liberals do it but "necessary" when conservatives do it:

Liberals denounced this as flagrant judicial activism. I agreed to some extent in my July 7, 2007, column because -- in my view -- Roberts's plurality opinion sought to transfer too much power over such issues to judges, and away from the political branches and thus from the voters, by imposing a more absolutist ban on any and all racial classifications than is justified by the Constitution's language and history. (In my September 27, 2008, column, I also argued that all nine justices are judicial activists.) But is it judicial activism when the justices stretch the Constitution to go over the heads of the political branches -- which are dominated by special-interest lobbies -- not to overrule the voters but rather to give them what they want?

This is, of course, absurd. Voters express their preferences not by Quinnipiac poll, but by electing representatives. President Obama was elected President of the United States. The Democrats were swept into power in the Congress by large majorities. Indeed, they will now hold the largest majorities seen in the Congress since 1980.

But Taylor here proves my axiom - to conservatives there is no bad conservative judicial activism - only bad liberal judicial activism. Thus, Taylor is demanding extreme conservative judicial activism in the Ricci case:

But it would more than justify a ruling for the white New Haven firefighters. Far from being activist, such a decision would vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal protection clause.

This is false. Just because Taylor agrees with the POLICY result, he thinks it would not be judicial activism if the Roberts Court were to overturn the will of Congress and a 38 year old Supreme Court precedent.

This is absurd. Griggs was decided 38 years ago. Congress, including many Republican congresses, has had many opportunities to overturn that decision by legislative action. As they did regarding the Ledbetter decision (President Obama signed the law overturning the Supreme Court decision a t the beginning of his term), the Grove City decision (which the Congress overturned in 1988 when it passed the Civil Rights Restoration Act) and earlier when the Congress overturned a Supreme Court decision that effectively repealed by judicial fiat many important aspects of the Civil Rights Act (the Congress passed a law signed by the Republican President George H.W. Bush.)

Taylor's position is intellectually incoherent. Which proves my point - for conservatives like Taylor "judicial activism" is only bad when "liberals" do it. It is an empty judicial philosophy.

It is the conservative political philosophy regarding the Supreme Court. Conservative judicial activism = good. "Liberal" judicial activism = bad. Taylor does a service by laying it out so honestly.

Speaking for me only

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  • Display: Sort:
    no. (5.00 / 1) (#9)
    by cpinva on Fri Jun 05, 2009 at 08:32:31 AM EST
    Now will the Media feel it is acceptable to report this obvious fact?

    it isn't the village-think, so it shan't be reported. they will continue with the republican version of "judicial activism" only being liberal.

    Hard to imagine that I wouldn't (5.00 / 1) (#11)
    by andgarden on Fri Jun 05, 2009 at 08:53:15 AM EST
    do the same thing from my own political perspective.

    the party (none / 0) (#1)
    by Ga6thDem on Fri Jun 05, 2009 at 07:57:01 AM EST
    may have won and have majorities but they act like they are still shell shocked from the loss in 2004. 2006 did nothing to improve their self esteem and it seems 2008 didnt either.

    That may be (none / 0) (#2)
    by Big Tent Democrat on Fri Jun 05, 2009 at 08:01:14 AM EST
    But is not germane to the point I am making regarding Taylor's argument.

    Okay. (none / 0) (#3)
    by Ga6thDem on Fri Jun 05, 2009 at 08:12:19 AM EST
    I know. It's the same IOKIYR argument they've been making forever it seems.

    Shorter BTD (none / 0) (#4)
    by Molly Bloom on Fri Jun 05, 2009 at 08:12:19 AM EST
    Taylor is a fraud.

    No argument from me.

    Actually (none / 0) (#5)
    by Big Tent Democrat on Fri Jun 05, 2009 at 08:15:36 AM EST
    It was pretty honest.

    double standards and incoherent arguments on what constitutes the will of the people.

    For Taylor actual voting by actual voters for actual representatives s not the measure. A Q poll is. Just bizarre.


    Well in my book (none / 0) (#6)
    by Molly Bloom on Fri Jun 05, 2009 at 08:22:14 AM EST
    double standards and incoherence, honestly presented or not, knowlingly used to make an argument is a fraud.

    Well (none / 0) (#7)
    by Big Tent Democrat on Fri Jun 05, 2009 at 08:24:05 AM EST
    I just call it stupid.

    different strokes . . .


    That works (none / 0) (#8)
    by Molly Bloom on Fri Jun 05, 2009 at 08:25:51 AM EST
    And yet Talyor is smart (none / 0) (#10)
    by Big Tent Democrat on Fri Jun 05, 2009 at 08:32:37 AM EST
    In this column, he presented a principled and intelligent polcy argument for why the Congress should rewrite Title VII and overturn the Griggs "disparate impact" test.

    I strongly disagree with him but his discussion there is coherent and intelligent. Principled even.

    But then he writes the column I cite in my post today. e demands judicial activism to achieve the policy result he prefers. And defends it as "different" from the "judicial activism" he purports to abhor. It baffles me why he does these things.


    Thanks for writing this! (none / 0) (#13)
    by blogname on Fri Jun 05, 2009 at 01:16:18 PM EST
    I was going to write something along the same lines, but your excellent analysis does the job. Attacking Sotomayor has led to some very "interesting" (i.e., contradictory and hypocritical) arguments among conservatives. Conservatives have criticized her ruling in Hayden v. Pataki, even though she, following Scalia's lead, applied the "plain meaning" of Section Two of the Voting Rights Act and found the statute applicable to New York State's felon disenfranchisement law.

    They have also complained that she sat on two panels considering gun rights - one which held that the Second Amendment only authorized states to create militias and another which declined to find the Second Amendment incorporated after DC v. Heller or to announce a new "fundamental right." The Supreme Court, however, only announced last year, in a closely divided decision, that the Second Amendment created an individual right.  The Court did not deal with the incoporation question.  

    After Heller, the Second Circuit followed Supreme Court precedent and declined to hold that the Second Amendment was incoporated.  Conservatives have blasted Sotomayor for that decision -- even though a conservative panel of the Seventh Circuit has reached the same conclusion. Apparently, the Warren Court's "selective incorporation" does not constitute "radical judicial activism" if the right at issue concerns guns.  Conservatives are even upset that the Second Circuit failed to engage in a "fundamental rights" analysis (in addition to incorporation).  But this is the same analysis that led them to blast Griswold and the other privacy cases. Even though gun rights are presumably stronger because they are protected by explicit text, this text does not compel recognition of a fundamental right to bear arms.  

    Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)

    It seems to me (none / 0) (#15)
    by Steve M on Fri Jun 05, 2009 at 05:21:09 PM EST
    that if Scalia had wanted to call it a fundamental right, he certainly knew how to do so.  Conservatives are angry with Sotomayor for failing to read that word into a decision where it didn't actually appear.