The Senate will soon be taking up the nomination of Sonia Sotomayor for the Supreme Court. The Judiciary Committee, and then the full body, will be filled with debates over what is proper and appropriate for justices — and other judges, for that matter. Conservatives, whether they have called Sotomayor a racist or they have kept their criticism more muted, have had one consistent criticism. Sotomayor is a “judicial activist,— they say — the opposite of what they believe defines a good justice.
[IMGCAP(1)]Wendy Long of the Judicial Confirmation Network, a card-carrying conservative activist, defined a good justice this way: “In our country, judges are the servants of a written Constitution (the first one in history, now widely emulated) and the laws we make through our elected representatives. This is the definition of self-government,’or government by the consent of the governed.’ So in America, under the rule of law,’ judges are bound to apply neutrally the law that is written in the Constitution, Bill of Rights, and laws enacted by representative bodies of the people.—
I agree wholeheartedly with Long. Judges are supposed to put their policy predilections aside and give deference to the legislature, meaning especially Congress. But over the years, I have watched those justices Long would view as heroes frequently manage to ignore, overrule or dis the laws Congress has passed, usually — through some striking coincidence — when Congress has acted in a way that goes against their policy predilections.
The perfect example of whether we have justices who meet the conservative definition — i.e., are not “judicial activists— — is heading for a Supreme Court ruling very soon. That is the case of Northwest Austin Municipal Utility District Number One v. Holder, a challenge to Section V of the Voting Rights Act, the “pre-clearance— provision. This provision was originally enacted in 1965, for five years; Congress continued it by statute in 1970 and thereafter, most recently in 2006, when an overwhelming margin voted to continue it for 25 years.
Congress’ judgment was that it was necessary to continue to require Justice Department clearance over voting procedures for states and districts that have in the past displayed racial discrimination. One may agree or disagree with that judgment. One might think that these states and districts have had the burden long enough, or that enough progress has been made to move on. Lots of people feel that way. But that is a decision for Congress to make — not for kibitzers or justices.
Did Congress carefully weigh the evidence and make a deliberative judgment? Justice Antonin Scalia, during the oral argument, suggested that the 99-0 vote in the Senate was a sign of nonseriousness: “You know, the, the Israeli Supreme Court, the Sanhedrin, used to have a rule, that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. Do you ever seriously expect Congress to vote against a re-extension of the Voting Rights Act? Do you really think that any incumbent would vote to do that?—
This was an interesting comment from a so-called nonjudicial activist, on two fronts. First was the irony of a justice who has been withering in his criticism of the court using foreign courts or their precedents in their decisions, using the example of a foreign court; second, and more important, was the sign of contempt for Congress — what role does a justice have defining the political motives of 100 elected Senators who make up the representative body of the people that Long refers to above? A unanimous decision by elected representatives should be viewed with deference by a careful justice, not ridicule.
Of course, the rationale for ignoring, overruling or ridiculing Congress is that lawmakers can pass laws that violate the higher authority of the Constitution itself. In this case, though, that argument simply doesn’t hold water. Here is the 15th Amendment to the Constitution in its entirety: “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.— There is nothing ambiguous here.
Oral arguments are not always harbingers of decisions. Nonetheless, most observers believe there is a strong chance that the five most conservative members of the court — four of whom (Scalia, Clarence Thomas, John Roberts and Samuel Alito) are the very models conservatives venerate — will vote to scrap or sharply dilute the preclearance provision of the Voting Rights Act. If they do so — and who would doubt that whip-smart justices like Scalia and Roberts will find articulate rationales for their decision — they will show what the term “judicial activist— really means.
Norman Ornstein is a resident scholar at the American Enterprise Institute.