[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
I missed this yesterday as I was dealing with a sick car, but the WAPO had an excellent Editorial Board Opinion on whether the Supreme Court is filled with politicians in judicial robes. They were discussing the then-impending oral arguments in the Walmart class action case, writing:
It’s easy in cases such as this one to try to caricature justices as political players in search of a desired result. Easy, but wrong, as a recent spate of decisions show.
Within the past few weeks, the Supreme Court, with conservative justices in agreement, rendered decisions that caused corporate America to groan. In one case, the justices sided with an employee who claimed his employer retaliated against him after he made a complaint. In another, they unanimously gave a green light to investors who sued a drugmaker accused of withholding information about serious side effects linked to one of its products. And the court, in a decision written by Chief Justice John G. Roberts Jr., an appointee of George W. Bush, rebuffed AT&T’s argument that it was entitled to “personal privacy” in order to shield certain information from public view. The chief justice, with tongue firmly planted in cheek, wrote that the court hoped “AT&T would not take it personally.”…
Justices are not devoid of points of view, and their “judicial philosophies” help steer them to certain results. There will be cases in which the justices appear to split along ideological lines, and the Wal-Mart case may very well be one of them. Debate and disagreement over the merits of a decision are understandable; not so painting justices as mere political hacks camouflaged in judicial robes.
And really it’s a pretty good opinion, and I recommend reading the whole thing and possibly even the links in it. But it’s funny that their defense against charges that the Supreme Court is politically biased consists solely of defending conservatives against the charge of always siding with big business. Yes, early in the editorial, in a part I don’t quote, they wave a hand at the concern of liberal activism but nothing in the meat of their argument seems to be aimed at dispelling that concern. There are no citations of specific cases where liberals broke the liberal mold.
Mind you, these cases do exist. The “liberals” on the court do not reflexively rule on the “liberal” side in every matter as defined narrowly in the case in front of them (more on that in a moment). So why no discussion of those cases? Perhaps the WAPO just doesn’t believe that the charge against liberals is serious enough to merit a defense. Which is a dubious belief (if that is their reason), but that doesn’t mean they don’t believe it.
Now you see me accuse justices now and then of activism. But let me flesh that out a little bit. Even the activists do not simply think, “what do the liberals/conservatives want this time? Okay, let’s give them that.” That is because what the left or right wants at any given moment is very often unprincipled. This is largely the product of coalition politics, where often utterly contradictory political movements are grouped together under the banner of “left” or “Democratic” or “right” or “Republican.” For instance, there is a deep contradiction between the left’s support for the privacy doctrine in relation to abortion, and their support for Obamacare, which is captured well in this photoshop:
A case in point was Rumsfeld v. FAIR. In that case, a number of universities were refusing to allow military recruiters on campus in protest of the Don’t Ask, Don’t Tell policy. However, federal law stated that Department of Defense money was conditional upon such access—i.e. no access, no DOD money. That policy was referred to as the Solomon amendment. But FAIR, which represented the universities, wanted to have its cake and eat it, too, by excluding military recruiters and still getting DOD money. The argument they put forth was this. This was a “boycott” and thus a form of speech, and thus the Solomon Amendment placed an unconstitutional condition, supposedly, on the receipt of those funds.
Liberals lawyers I knew at the time predicted victory for FAIR, but I recognized that what they were asking the court to do was deeply unprincipled. After all, these same liberal commentators believed that Title IX of the Civil Rights Act of 1964, which held that educational institutions that received federal funds could not discriminate based on race, gender and a few other traits, was constitutional. By what principle could you say it is unconstitutional to take away federal money from universities that excluded military recruiters, but at the same time say it is constitutional for the federal government to take away funds from universities that excluded black people? So I predicted at the time that even the liberals on the court would have a hard time siding with FAIR, and history bore me out. The decision was unanimous and indeed they specifically cited a decision upholding Title IX as precedent:
Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell, … we rejected a private college’s claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument “warrant[ed] only brief consideration” because “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.”… We concluded that no First Amendment violation had occurred— without reviewing the substance of the First Amendment claims—because Grove City could decline the Government’s funds.
So to the extent that a justice is an activist (which, contrary to what one nitwit thinks, is commonly defined as refusing to follow the law, including the constitution and has nothing to do with honoring precedent), it’s not about blowing around in the wind according to whatever the liberals or conservatives want this week. To the extent that they are activists, they are taking the long view.
[Posted and authored by Aaron Worthing.]