GRAPH 1
Restraint (deference) vs Activism (invalidate)
(click to enlarge)
Which Justices practiced judicial restraint? That is, judicial "modesty and humility"--as Chief Justice Roberts said he would at his confirmation hearings.You know, deference to the lawmakers. Respect for the choices of the Congress and the States. Reluctance to overrule their decisions. Affording considerable leeway to those more accountable, more democratic, more representative, closer-to-the-people arms of the government.
In short, invalidating a law enacted by Congress or the States only when that law is clearly unconstitutional. When there's no doubt about it. The law violates an unmistakable command of the Constitution.
So which Justices practiced the John Roberts "modesty and humility" of judicial restraint? More precisely, how frequently did each Justice exercise judicial restraint? And how frequently the opposite--i.e., the apparently dreaded judicial activism? How frequently voting to overrule the people's representatives?
Looking at the graph, what is immediately evident is that no Justice was consistently restrained. None consistently deferred to the lawmakers. (Liberal, now-retired Justice Stevens actually was the most restrained, the most deferential to the lawmakers. None of the other Justices, conservative or liberal, were particularly restrained or activist.)
Remember, these were all close cases. In none of these cases--the highlight cases of last term--could it honestly be said that one side or the other was clearly right. In none of these cases could it honestly be said that the Constitution undoubtedly required this or prohibited that. In short, in every one of these cases, there were strong arguments that the Constitution allowed the laws enacted by the Congress or the States. There were strong arguments for judicial restraint in every one of these cases. (And, yes, there were also strong arguments for the opposite. That's the point. Again, these cases were close.)
So, which Justices were truly dedicated to judicial restraint? Not in the easy cases--that's easy! But in the tough, close cases?
Well, there is certainly no conservative versus liberal divide on this. No, that much is very clear. Neither the conservative Justices nor the liberals were consistently restrained. Indeed, the conservative Justices were no more restrained in these tough, close cases than were the liberals. They were just as judicially active. (In fact, the liberal Justices were actually a bit more restrained overall. But, let's not go overboard. The difference is not significant.)
What is significant is that both the conservative and liberal Justices were sometimes restrained and sometimes active. And neither group of Justices was particularly more restrained or activist than the other.
Of the highlights of last term--the "Top Ten" cases--there were 7 that dealt with a challenge to the constitutional validity of a law. The laws being challenged in these cases involved:
--limiting corporate spending on political campaigns
--continuing the display of a Christian cross on federal property
--imposing a life sentence without parole for a non-homicidal juvenile crime
--prohibiting "material support" to a terrorist organizations, including speaking to them about peaceful advocacy
--the white collar crime of "honest services" fraud
--state and local gun control
--anti-discrimination against gays and lesbians as applied to a student religious group.
Without more, you can guess which laws were generally favored and which opposed by the conservative Justices. And which by the liberals.
The conservative Justices generally supported laws for the display of the Christian cross, the life-sentence for juvenile crimes, and the war on terror. They generally opposed laws limiting campaign spending limits by corporations, controlling gun possession, and prohibiting discrimination against gays and lesbians. They were divided on the "honest services" fraud statute. The liberal Justices generally took exactly the opposite position, and they all supported saving the "honest services"law.
Now none of that is surprising. And why? It has absolutely nothing to do with judicial restraint versus activism. Absolutely nothing to do with the conservative Justices practicing "modesty and humility" versus the liberals being activist. Or vice-versa.
What it does have to do with is politically partisan positions. Look again at graph 1 above. There is no divide between the conservative and liberal Justices on the restraint-versus-activism spectrum. To be sure, there is a divide. We saw it previously. In the last post. Here it is again--graphically:
GRAPH 2
Politically Conservative vs Politically Liberal
(click to enlarge)
The conservative Justices--that's Chief Justice Roberts and Justices Scalia, Thomas, and Alito--voted like conservative Republican politicians. Not like judicial restraintists. Not with "modesty and humility."
The liberal Justices--Justices Stevens, Ginsburg, Breyer, and Sotomayor--voted like liberal Democratic politicians. Not particularly like judicial activists. Not without deference to the lawmakers--i.e., no less deference than the conservative Justices. And not much more restrained or with much more "modesty and humility" than the conservatives either. (Except for Justice Stevens who, as noted earlier, had that most restrained record on the Court.)
Seriously, just look at this graph. Look at the stark, unmistakable, glaring divide. That divide is politically conservative Republican versus politically liberal Democratic. Not judicially conservative (i.e., restrained) versus judicially liberal (i.e., activist). But politically conservative versus politically liberal--as in the polarized, partisan divide of Republican and Democratic politicians.
Hmm. Not a very encouraging, inspiring, confidence-inducing portrait of the Court. Not if the purpose of the Court is something different than that of the political branches. Different than the political parties. Not if the role of the Justices is to be impartial, objective, non-partisan, neutral. At least to be that in a legal, judicial sense.
No, we are not getting that with the current Court. Not with its current composition. Not with the conservative Justices on the Court. Nor with the liberals.
In the next post, for the purposes of full disclosure, we'll (i.e., I'll) reveal how I would have voted in these cases. How my votes would line up with those of the Justices and with the Court itself. Not that I'm deluding myself that anyone especially cares how I would have voted. But just to put the disclosure on the record. And to be perfectly candid, because I have fun doing it!
