The Kagan Hearings: Back to Conservative Activism?





David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School. He is the author of The Living Constitution (Oxford, 2010).

For the last fifty years or more, American constitutional law has lent itself to an easy caricature.  If you were a liberal, you thought that liberals wanted to use the courts, justifiably, to protect minorities and other disadvantaged groups:  African Americans, women, gays and lesbians.  If you were a conservative, you thought that liberals were asking the courts to invent rights that did not exist, and were rushing to the courts because they were unable to win elections.

But things were not always like that.  In the first decades of the twentieth century, the roles were reversed:  liberals accused conservatives of inventing non-existent constitutional rights because they did not like decisions made by the duly elected branches of government.  Now, after the hearings on Elena Kagan’s nomination to the Supreme Court, there is lots of evidence that the easy caricature of the last fifty years is off base and that we have returned to something more like the dynamics of the early twentieth century.  The conservatives are looking to the courts for salvation; the liberals are preaching “judicial restraint.”

From the late nineteenth century to the mid-1930s, the U.S. Supreme Court declared unconstitutional a variety of social welfare and regulatory laws that Congress and the states had adopted to deal with the increasing industrialization and urbanization of American society.  The best-known case of the era was Lochner v. New York, decided in 1905, in which the Court declared unconstitutional a New York law that limited the number of hours that employees could work in a bakery. A majority of the Court said that that law infringed on the “liberty of contract” guaranteed by the Constitution.  The Court also struck down child labor laws, minimum wage laws, business licensing laws, and other similar regulations.

The liberals of the time attacked the Court relentlessly. They insisted that the Court was inventing rights—like the “liberty of contract”—that were not in the Constitution, and that the Court was arrogating to itself the power to decide complex questions of social policy.  What we’d now call “judicial restraint” became a liberal watchword.  Courts should mostly stay on the sidelines, the liberals said.  Courts should not strike down laws unless the laws were so utterly unreasonable as to be beyond the pale.  And, most important, courts should stay away from controversial social and political issues—those were for the people’s elected representatives.

In the mid-1930s, after the Court had declared unconstitutional some of the central pieces of President Franklin Roosevelt’s New Deal, Roosevelt, in effect, declared war on the Court.  After his landslide re-election in 1936, Roosevelt famously tried to “pack” the Court:  he asked Congress to enlarge the Court, which would have enabled him to appoint enough new justices to secure a majority favorable to his programs.  Congress refused, but around that same time the Court seemed to change its tune; it began upholding laws regulating businesses.  Eventually Roosevelt, by virtue of winning four elections, simply remade the Court:  he appointed eight new justices.  All of them agreed that the Lochner-era decisions were usurpations, and that the courts should stay away from social welfare and regulatory legislation.

But the mid-twentieth century brought new issues.  The most important, by far, was race:  the various aspects of Jim Crow apartheid in the South.  The McCarthy era of the 1950s forced civil liberties issues to the fore.  The Court also had to address claims about the rights of criminal defendants—partly because that issue was entwined, to a degree, with race.  And now the liberal consensus-- that the courts should stay on the sidelines—began to fracture.  On race issues, the Court was ultimately unanimous in condemning Jim Crow; but it hesitated and proceeded cautiously, because some of the FDR appointees feared that the Court’s intervention would attract the kind of concerted opposition from politicians and the public that almost undid the Court in the 1930s.

As the Warren Court moved more and more into controversial issues—school prayer, the composition of state legislatures (in the so-called “one person, one vote” cases), and criminal suspects’ rights—it was the conservatives, allied in some cases with FDR-era liberals, who accused the Court of doing what the Lochner Court had done.  Now, the argument went, it was the liberals who were making up rights that were not in the Constitution.  Now it was the liberals who thought that the courts were the remedy for everything that (they imagined) ailed American society.  These criticisms reached their peak in the attacks on the Court’s 1973 decision in Roe v. Wade, holding that the Constitution generally guaranteed a right to an abortion.

With the nomination of Elena Kagan to the Supreme Court, we can see that the sides have reversed their positions again.  As in the Lochner era and FDR’s time, the liberal argument is that the courts should, mostly, stay on the sidelines and leave the important issues to Congress and the President; and it’s the conservatives who increasingly are—as their opponents would put it—running to the courts when they can’t persuade the public.

When Kagan’s nomination was announced, conservative opponents of President Obama brought out the familiar rhetoric.  Kagan was, they feared, a liberal judicial activist.  She would make up rights and arrogate power.  But once the hearings started—and conservative senators began asking her about specific issues—things looked different.  The senators were concerned much less with what the courts might do than with what they might not do.  Shouldn’t the Court strike down laws like the McCain-Feingold regulation of campaign finance, Senator Orrin Hatch asked?  (Kagan’s said Senator Hatch should speak to Senator Feingold about that.)  Would Kagan protect gun owners’ rights by voting to invalidate gun control laws?  And what about the health care reform that Congress had just enacted—wasn’t it an unconstitutional assertion of federal power?

Kagan’s answers to these questions were all basically the same.  She refused, of course, to state her views on specific issues that might come before her as justice.  But she left no doubt about her general orientation:  the major policy decisions in the nation are to be made by elected representatives.  The courts’ role is important, but it is limited.  They should be very reluctant to overturn a considered decision of the elected branches of government.  All the things that liberals said in the 1930s—and conservatives said in the 1960s.

The interesting question is whether the current state of affairs, resembling as it does the Lochner era, is the norm; perhaps the era of Warren Court liberalism was an anomaly.  There are good reasons to think this is true:  judges, one might expect, are likely to come from social groups that are more conservative, more likely to oppose regulatory and redistributive laws.  At least that has been the argument of some liberals who want to insist on across-the-board judicial restraint, even if it means giving up the dream of another Warren Court that will crusade for the rights of disadvantaged minorities.  Other liberals are unwilling to give up that dream.  But there is not much doubt, after the Kagan hearings, about the direction in which things are moving.  They are moving back to the days when courts were a refuge for conservatives, and liberals preached judicial restraint.

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Arnold Shcherban - 7/13/2010

is nothing more or less than a reflection of the US political landscape: the bi-partisan institution.


Thomas R. Cox - 7/12/2010

Although justices Roberts, Scalia, et al. are activist judges the right has generally refused to admit as much--even as they applaud the majorities activist positions of late. Kagan won't change this; it will still be 5-4.