Op-Ed

Judicial Activism Rears it’s Head Again

E.J. Dionne, Jr.

The judicial activists on the Rehnquist Court were at it again this week.

By the usual 5-4 majority, the U.S. Supreme Court decided it had more power than the people’s branch of government, Congress. It ruled that state employees cannot use the Americans with Disabilities Act to sue their states for damages, voiding part of Congress’ intent.

Worse, the very justices who claim to be ‘strict constructionists’ acknowledged outright that they had stretched the meaning of the 11th Amendment to the Constitution in order to enshrine a doctrine of states’ rights that happens to be to their liking. Please forgive me for noting that the same five justices had no problem overriding states’ rights in the case of Bush vs. Gore. And so, suddenly, it is the moderate-to-liberal justices preaching humility and restraint about the court’s powers. In Bush vs. Gore, the four dissenters argued that the federal court owed the Florida Supreme Court a chance to resolve the problems surrounding the state’s vote re-count. In the disability case decided Wednesday, the same four argued that the Supreme Court does not have the arbitrary power to override Congress’ will.

Two remarkable things happened in this case. The first is the court’s open admission that it is in the process of making the 11th Amendment say more than it actually says. For the record, let’s quote the amendment in its entirety:

‘The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.’

Writing for the majority, Chief Justice William Rehnquist first admitted what the amendment actually says, and then said what he and his colleagues in the majority want it to mean. ‘Although by its terms the amendment applies only to suits against a state by citizens of another state, our cases have extended the amendment’s applicability to suits by citizens against their own states.’

I’ve added the emphasis to underscore the basic question: How can anyone in this majority claim it’s only interested in strictly construing the words of the Constitution? By citing the authority of its own cases, the court is simply invoking its own power. Isn’t it a distortion of the 11th Amendment to tell citizens they can’t sue their own states?

The majority took a second step to usurp power from the legislative branch. It argued that Congress had not demonstrated a sufficient level of proof that states had engaged in a ‘pattern of unconstitutional discrimination.’ Here, Justice Stephen Breyer called the majority’s bluff by arguing that Congress had adequately proven its point. He included a listing of the extensive hearings Congress held before passing the disabilities act, and 39 pages of state-by-state examples of official acts of discrimination.

Breyer went on to make the core case against judicial activism and for decisions made by the elected branches of government. ‘Unlike courts,’ he wrote, ‘Congress can readily gather facts from across the nation, assess the magnitude of a problem and more easily find an appropriate remedy…Unlike judges, members of Congress can directly obtain information from constituents who have firsthand experience with discrimination and related issues.’

Therefore, he argued, it was wrong to apply the procedures of the courtroom to the process of democracy—’to apply a rule designed to restrict courts as if it restricted Congress’ legislative power is to stand the underlying principle—a principle of judicial restraint—on its head.’

Can anyone doubt that we are witnessing the rise of a new conservative judicial activism? If conservatives want to chortle over the fact that some liberals who once defended judicial activism now find themselves its victims, they have a right to do so. That doesn’t justify what the court is doing.

In fact, some liberals warned long ago of the dangers of handing too much power to judges. One of them was Cass Sunstein, a law professor at the University of Chicago. Writing last month in the Chronicle of Higher Education, Sunstein said Bush vs. Gore might have the virtue of reminding everyone—and perhaps especially liberals—that liberal judicial activism was ‘a brief quirk of history, limited to a short time in the middle of the 20th century.’

Sunstein argued that over the longer run of American history, conservative judicial activism was ‘both far more likely and hence far more dangerous to democracy.’ When the U.S. Supreme Court decides to overturn Congress’ efforts to protect the rights of disabled people, you begin to see his point.