Friends, foes of judicial activism switch roles

Liberals urge courts to use more restraint

May 20, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - During last year's presidential campaign and in the months leading up to his first wave of judicial nominations, President Bush gave notice that he would not appoint "activist judges" to the federal courts who would "use their bench to subvert the legislature."

A generation ago, the president's meaning would have been clear. During the 1960s and 1970s, activist judges were liberals who used their power to expand individual rights of self-expression, due process and privacy. In striking down government restrictions on abortion and free speech, they were condemned by conservatives for overstepping their role as judges and legislating from the bench.

But in recent years, these roles have been reversed. Liberal judges, no longer in the majority on most courts, have urged judicial restraint as a way of preserving their earlier victories. And it is conservative judges who have taken an activist stance that shows little deference to elected branches of government.

This reversal has been most evident on the Supreme Court, where seven of the nine justices are Republican appointees. In the past six years, the court has struck down all or part of 27 federal statutes. And since William H. Rehnquist became chief justice in 1986, the court has overruled more than 30 Supreme Court precedents.

"We are now in an era of tremendous conservative judicial activism," says Erwin Chemerinsky, a law professor at the University of Southern California. "The Rehnquist court has already struck down more federal laws than either the Warren or Burger courts."

The effect of this activism has been profound. In decisions narrowly construing Congress' power to regulate interstate commerce, the court has limited the federal government's ability to address social concerns such as domestic violence and school safety. In opinions protecting states from lawsuits in federal courts, it has weakened anti-discrimination laws designed to protect disabled and older workers.

The court has prohibited Congress from conscripting the aid of states to deal with nationwide problems such as radioactive waste and the possession of handguns by convicted criminals. It also has prevented Congress from expanding the Constitution's protection of religious activities.

And last year, the court stepped into the middle of the disputed presidential election when most observers expected it to stay on the sidelines.

Following the Constitution

Conservative scholars defend this new activism. They say that the court is simply following the command of the Constitution and that if the result is an increase in the number of laws struck down, so be it. They also argue that the charge of judicial activism is empty without examining the basis for the court's decisions.

"I think the term judicial activism has no meaning," says Harvard law professor Charles Fried, who served as solicitor general under President Ronald Reagan. "It's shorthand for judges doing what you don't like. The more accurate question is whether judges are following the law or making it up, and following the law or the Constitution can make you very active sometimes."

Fried argues that the judicial activism of the 1960s and 1970s was unwarranted because the court created rights out of thin air, with no basis in the Constitution. He is especially critical of the court's use of the due process clause - which on its face merely requires the government to follow certain procedures before depriving a person of life, liberty or property - to create a substantive right to abortion in Roe vs. Wade.

The Rehnquist court's activism is different, Fried maintains, because it is grounded in the words of the Constitution. As an example, he points to the court's decision last year to strike down a federal law giving the victims of rape, domestic violence and other crimes "motivated by gender" the right to sue their attackers in federal court.

The case involved a lawsuit brought by Christy Brzonkala, a student at Virginia Polytechnic Institute, against two varsity athletes she accused of raping her in her dorm room. When the school declined to discipline the two men, she sued under a provision of the 1994 Violence Against Women Act.

Fried says the law could not be justified as an exercise of Congress' power to regulate interstate commerce - as lawmakers said - because the link between gender-based violence and commerce is too weak. Any other conclusion, he argues, would violate the long-accepted principle that the federal government's power is limited.

"If that's a regulation of commerce, then anything is, and plainly the Constitution does not intend for Congress to be able to regulate everything," says Fried, who helped argue against the law before the court.

Court's judgment

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