Too Cute By Half

An op-ed piece in the times makes a variant on the cutesy argument that conservatives are the real empathetic judicial activists.

The author makes a few arguments, none particularly cogent. A sample:

...when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

The Voting Rights Act decision was a case in point. Eight justices avoided weighing in on the constitutionality of the law... But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed... is that really for him to say? Congress is the proper body to make that judgment. none of the justices... discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary. The occasion for the amendment was, after all, the end of a civil war brought about in significant part by judicial overreaching in the Dred Scott case.

The actual facts are these: Under the constitution, State governments have fundamental rights protected from intrusion by the Federal government. A majority of justices likely believe, for good "originalist" reasons, that section 5 of the VRA would have been an unconstitutional intrusion of the Federal Government in state affairs prior to the adoption of the 15th Amendment. The plain text of the 15th Amendment gives Congress the power to protect voting rights, but not to otherwise arbitrarily intrude into sensitive areas of state and local policymaking. Historically, the Supreme Court, not Congress, has the responsibility of Judicial Review, which, in this case, involves determining whether this legislation is a constitutional protection of voting rights or an unconstitutional intrusion on State autonomy. The suggestion that somehow because of Dred Scott the 15th Amendment is governed by an original intent to assign Judicial Review to Congress is, to my mind, rather fanciful.

In stretching to make a less tenable point, the Author actually missed a more accurate, if limited, one. The politics of this case are such that a court finding Section 5 of the VRA unconstitutional would be almost as political valuable for Democrats as Roe v Wade has been for Republicans. It is easy to believe that the Conservative Justices in the majority, had the politics in mind, as they, best I can tell, found a creative way to gut the law -- by discovering an expanded “bailout” provision -- without, technically, overturning it.

In the end, however, there is all the difference in the world between Justices, perhaps like Roberts, who may, on occasion, creatively, or expansively, interpret in an effort to avoid making political waves, and those who do so -- as conservatives fear (perhaps unjustly) of Sotomayor -- without similar concern.