Last Friday, Justice Antonin Scalia delivered the Henry J. Abraham Lecture at the University of Virginia law school. In defending his constitutional methodology of originalism, Justice Scalia started with a classic joke. I'll paraphrase: Two hunters find themselves being chased through the woods by a bloodthirsty bear. The heavier one starts to huff and puff, and finally turns to the other and wheezes: "I don't think we're going to be able to outrun him!" The second hunter, jogging just ahead, replies: "I don't need to outrun him; I only need to outrun you!"
Scalia's point is that it's not his responsibility to prove that textualism or originalism are perfect constitutional theories. It's enough for him to demonstrate they are better than the alternative. And the alternative, says Scalia, is for a justice to "make the law what he thinks it should be." His parable of the Bear, the Hunters, and the Originalist reminded me of what Scalia does so well that liberal constitutional thinkers can't always manage. Where he is pithy and clear in his prescription for judicial restraint, they get all tangled up in an effort to make their own jurisprudential theory sound perfect. Perhaps in advance of what is shaping up to be a galactic fight about President Obama's next Supreme Court nominee, liberals should take Scalia's adage to heart and content themselves just to outrun the other guy. In other words, maybe there is no time like the present to tell the country about the hazards and pitfalls of the conservative theories of originalism and textualism and the cult of balls-and-strikes-ism that has taken over the American jurisprudential debate.
The public conversation about the judiciary in recent decades has often conflated a broad fear of unelected judges with a clear definition of what judges should do. In the wake of the Jackson Pollock-style jurisprudence of the Warren Court, anxiety about overreaching judges morphed into a widespread sense that judges simply do too much. Conservative groups happily pushed the line that liberal judges were all merely unelected "activists" bent on "legislating from the bench." But this says little about how a judge should decide cases and much about our fear of the bench. Originalism and textualism aren't the only way to constrain judges, but they dovetail nicely with the idea that if you confine yourself to what the framers would want, you can't make as much of a mess with the yellow paint.
That's how judicial "activism"—a word we all should acknowledge is meaningless—turned into a catchall term for judges who did anything one didn't like. They were, after all, acting. It's only in recent years that we've discovered that the opposite of an "activist" judge is, in fact, a deceased one.
When John Roberts captured the hearts of America during his confirmation hearing, with his language of "minimalism" and "humility" and "restraint," he brilliantly reassured Americans that at his very best, he would do just about nothing from the bench. This pledge was shored up by a complex web of doctrines guaranteed to ensure that, in case after case, his hands were tied. Long before he was tapped for a seat at the high court, Roberts had written approvingly of efforts to cabin judicial power, including his efforts in 1984 to promote court-stripping legislation, to circumscribe the reach of Title IX, and to stiffen standing requirements for access to courts. Since becoming chief justice, Roberts and his colleagues on the court's right wing have continued to resolve cases by narrowing the authority of courts to solve problems. The Roberts court has worked to ensure that it's harder for women to bring gender-discrimination suits and harder for elderly Americans to sue for age discrimination. It's ever harder for those affected by pollution to prevail. Last term was the worst ever for environmental cases at the high court.
Reviewing these trends at the Roberts court last spring, Jeffrey Toobin concluded that
[t]he kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
You can keep on characterizing this as merely "calling balls and strikes," but it's becoming amply clear to most Americans that with this court behind the plate, only big business ever gets to first.
We have, then, a surrendered court, an institution devoted to the principle that it is critically important to be seen as powerless and unimportant. A court that has deployed filing deadlines and pleading requirements and standing doctrine to keep the courts out of the picture. Maybe it's not as simple as "restraint" versus "activism." Maybe the opposite of an activist court is a court too passive to do justice at all.
Now before my friends out there in the conservative blogosphere go crazy and consign me to the same place they consign, well, everyone I know, it's important to clarify that there is a principled jurisprudential debate to be had, on the need to constrain the judiciary. There is a need for a thoughtful discussion about how to interpret the Constitution and what judges should take into consideration while doing so, and I dearly hope we will spend the coming weeks having it. My only point here is that most Americans, having been terrified by the specter of "liberal activist" judges legislating from the bench, should be equally terrified at the prospect of "humble judicial minimalists" who are institutionally powerless to do anything at all to protect America's women, its workers, its minorities, and its environment. I suspect most Americans still want to believe that if they are the victims of discrimination or injustice or brutality, the courts are a place to go for vindication. As suspicious as we may all have become of ideological, activist judges, I imagine most of us would still like to believe that if we were to file something in a courthouse tomorrow, a judge would be available to do something about it.
If I learned anything from the confirmation hearing last week for Goodwin Liu, Obama's nominee for the U.S. Court of Appeals for the 9th Circuit, it's that the Republican script about judges won't change anytime soon. Anyone nominated by a Democrat will be reflexively accused of being dangerous, grandiose, power-mad, and unprincipled. It's worked for years, and it may even work for a few more months. But faced with a federal judiciary proving itself to be so "humble" and "restrained" that it should maybe be on Philip Morris' payroll, the idea that there is an affirmative role for jurists to play in this system of checks and balances should not be so hard to sell.
In his excellent piece in the New York Times last week, professor Geoffrey R. Stone talked about the need to do away with conclusory language about neutral umpires versus judges who make stuff up. Invoking the vital constitutional role of the court in protecting minorities, Stone pointed out that the court cannot play its role as a counter-majoritarian check when conservative judges "tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society." Again, there is a compelling argument to be made to the contrary. But Stone's larger point is that we can't have this conversation when we are busy bonking one another on the head with bats that say "crazy activist" and "neutral umpire."
Writing yesterday at the Huffington Post, Simon Lazarus also observed that while "in the recent past, Democratic leaders have shrunk from controversies about the Constitution and the courts" this nomination seems to have motivated the White House and congressional Democrats to refine their message to something beyond "We. Are. So Not. Activists." What we have heard, since the day of Stevens' retirement, has been a sharp response from President Obama himself, who said he was looking for a justice who, like retiring Justice John Paul Stevens, "knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." Sen. Patrick Leahy has made the same point in the weeks since, insisting on the Sunday talk shows that under the guise of in-activism, the Roberts court has almost completely ceded its responsibility to see justice done in America. Props to both the White House and Sen. Leahy, who seem to have taken Justice Scalia's lesson to heart: This time around, liberals needn't try to outrun the bear. They just have to outrun a Roberts court that is increasingly reluctant to move.