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  • Interview: Eric Foner on freedom
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  • Interview: Thomas Keck on judicial activism and the conservative Supreme Court
  • Interview: Bard O'Neill on Insurgency and Terrorism and the Iraq War

  •  INTERVIEW: THOMAS KECK

      Thomas Keck
    Thomas Keck on judicial activism and the conservative Supreme Court

    Although President Bush has praised conservative judges for their "judicial restraint" and promised to nominate more justices like Antonin Scalia, constitutional scholar Thomas Keck argues that this is the most activist Supreme Court in history.

    By JOSHUA TANZER
    Offoffoff.com


    Thomas Keck, an assistant professor at Syracuse University, has written a book calling the current conservative justices part of the "Most Activist Supreme Court in History." That would be a surprise to conservatives who think of themselves as practicing "judicial restraint" and adhering strictly to the precise text of the Constitution. Yet, Keck argues that today's court holds a complex mix of philosophies and personalities in which conservatives are quite likely to wade unrestrainedly into political disputes and inject their own preferences into the law — even as they accuse liberals of doing the same thing.

    THOMAS KECK

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    State of the Nation

    Interviews about the state of our country from the election to the inauguration.

    • George McGovern on Vietnam, Iraq and the election of 1972
    •  Thomas Keck on judicial activism and the conservative Supreme Court
    • Bard O'Neill on Insurgency, Terrorism and the Iraq War
    • Maurice Isserman on "America Divided"
    • Eric Foner on freedom
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     The Most Activist Supreme Court in History

      
    Q: One of the main themes in the book that seems to be articulated at the beginning and keep coming up is that conservatives rely on a number of similar-sounding principles to support their decisions, but they choose from them selectively depending on which ones seem advantageous.

    THOMAS KECK: Sure, I think that's fair to say. I guess the best example of that is the originalist approach to the Constitution. The theory is that the court should stick to the Constitution's original meaning, and certainly some of the conservative justices really believe that and take it seriously. But at the same time, there are just too many examples of them authoring court opinions that are pretty hard to connect to the original meaning, and so that cannot by itself be an explanation for their decisions.

    Q: What would be an example?

    THOMAS KECK: Take affirmative action, for example. What conservatives will tell you — and here I'm talking primarily about Scalia, Thomas and Rehnquist — is that, where the Constitution as originally understood imposes some clear limit on the political branches of government, it's the court's duty to enforce that limit, and where the Constitution is silent on some particular matter, then the court should just stay its hand and exercise restraint.

    Now, of course, these conservative justices have repeatedly voted to strike down race-conscious affirmative-action policies, and in none of these decisions have they ever undertaken any historical argument regarding the original meaning of the Equal Protection clause. They just assert that surely the 14th Amendment guarantee of equal protection of the laws means that the University of Michigan can't discriminate against white applicants. But virtually all the constitutional historians who've looked at the issue point out that the very same Congress that wrote the 14th Amendment adopted a number of race-conscious policies designed to benefit the former slaves, and they certainly do not seem to have believed that the amendment they were writing would prohibit all such race-conscious policies. So if we were going to stick to the 14th Amendment as originally understood, it seems that some race-conscious policies would be allowed, but the conservatives just haven't addressed that argument.

      
      "[Liberal activism] was a reasonably accurate description of what was going on in the '50s and '60s, but that [was an] unusual time period in the court's history. It has more often been the case that conservatives have promoted judicial activism in defense of constitutional principles like property rights or limited government, and liberals have responded to those decisions by calling for judicial restraint."
      
    Q: The principles that come to my mind are: judicial restraint as opposed to activism, strict constructionism, original intent, and respect for precedent. And they all sound like they would lead in the same direction, but frequently they don't.

    THOMAS KECK: Right. They don't all lead in the same direction — that's a very good point. And by the way, it's certainly not unique to conservatives that they would have multiple different principles pulling them in different directions. I mean, that's just as true of the liberal justices. But for the conservatives, they have long argued in favor of judicial restraint. And then if you point out, what does judicial restraint mean? Does it mean that the court should play a smaller role? Should it be less intrusive in political disputes and less willing to strike down the decisions of other governmental institutions? If you actually look at what the conservative justices do, they are just as willing to do all those things as the liberals. So they don't seem to be any more "restrained."

    Well, the conservatives would come back and say, "Yes, yes, yes, well, what we meant was that we should be restrained in matters that are not addressed in the original Constitution, and what's really important is originalism, and we're going to stick to the original meaning. Where it tells us to do something, we're going to do it actively, but where it's silent, we're going to be restrained." But then it seems that that doesn't really explain everything they're doing either.

    Strict constructionism is really just sort of code for originalism. It's the language that Nixon used — and the current president has been using it as well, I think mostly just because it has a catchy sound to it. It just means, essentially, the same thing as originalism — that the justices should stick to the law as it's written and not try to change it. And again, that's something that the conservatives have viewed as important, but it clearly is not by itself an explanation for all their decisions.

    Q: You talk in the earlier chapters of your book about judicial restraint as an idea that supported liberal reform in the early part of the century.

    THOMAS KECK: Yeah. It's a really interesting story. For those people — judges, constitutional scholars, politicians — who came of age during the era of the Warren Court, they had a pretty easy grasp of constitutional disputes, and here's what they looked like. You either were an advocate of judicial activism, which meant that you believed that the court should actively defend individual liberty and minority rights, or you were a conservative advocate of judicial restraint, which meant that you didn't think the court should do those things and you thought the democratically elected branches should have a much larger role to play.

    That was a reasonably accurate description of what was going on in the '50s and '60s, but that [was an] unusual time period in the court's history. It has more often been the case that conservatives have promoted judicial activism in defense of constitutional principles like property rights or limited government, and liberals have responded to those decisions by calling for judicial restraint. And the best example of that, in addition to the current era, is the early 20th century, the period that constitutional scholars call the Lochner era after Lochner v. New York. And it ultimately culminated in a big constitutional conflict during the New Deal in which FDR won the battle — won the war, anyway — and the court backed down and the liberal justices that FDR appointed argued for a sweeping posture of judicial restraint because the conservative justices had been striking down all of FDR's New Deal legislation.

    Q: Was Brown v. Board of Education a big turning point, where judicial restraint and judicial activism began to look different?

    THOMAS KECK: Yeah, it's a very significant case, of course. You have the New Deal, where FDR has been railing against the conservative justices — accusing them of being undemocratic and imposing their own will on the nation, and calling for the court to be much more restrained. And then FDR — who gets no appointments during his first term but then he's re-elected in a landslide in 1936 and goes on to serve three and a half terms — eventually he totally remakes the court. And his liberal justices — people like Felix Frankfurter — argue for judicial restraint. No more of this striking down economic regulation on the basis of property rights, and the like.


      
    "I talk in the book about the surprising number of landmark liberal decisions that continue to be announced by this court. We have this allegedly very conservative court where seven of the nine justices were appointed by Republican presidents, and yet we still get these landmark gay-rights decisions and the like."  

      
    But then the question that they're faced with is: Okay, what role is left for the court to play? One option — sort of the "road not taken" — was Frankfurter's option, which is really that the court has a fairly minimal role to play in the American democratic system, but most of the justices didn't go along with that. They said, okay, well, wait a minute. We've gotten rid of this old kind of judicial activism, but the court still plays an important function. If the court's still going to play an important function in the American constitutional system, we're going to have to develop some new foundations to support judicial power. And Justice [Harlan] Stone in particular, in the late '30s and early '40s, is very influential. What they came up with, essentially, is the modern conception of individual liberty and minority rights, and that in a democratic system, those important constitutional values are sometimes going to be threatened by the majority will, and the unelected judiciary is in the best place to try to defend those values.

    And then Brown v. Board of Education in 1954 is the best example of the court putting that into practice. And henceforward — if it wasn't clear already — from 1954 on it's certainly clear that the dominant justification for the active use of judicial power are sort of liberal principles of liberty and equality, and it's primarily conservatives who are complaining about the courts. And that is true for 30 years or so, until the present day when, as I describe in the book, conservative justices are using judicial power themselves.

    Q: You say that they even use a "rights-based" rationale. How would a conservative criticize the interpretation of rights arising from the Constitution?

    THOMAS KECK: That's a great question. There's nobody — certainly no justices on the Supreme Court or no mainstream constitutional scholars or political leaders — who rejects the idea of constitutional rights, right? I mean, everybody accepts that we have a Constitution, one of its primary purposes is to spell out certain constitutional rights, and one of the main institutions that has the duty to protect those rights is the courts. So everybody agrees with that — to a point.

    But historically — during the Warren era, for example — the conservative position was generally something like this: Yes, yes, yes, there are some constitutional rights, that the point of the First Amendment is to protect freedom of speech, and the court should defend it. But those rights are few, and defined. They are spelled out in the constitutional text. It is the court's duty to enforce those rights that are written, but it is illegitimate and unwise for the court to make up new rights or expand existing rights. And that's what the court was accused of doing.

    Q: How is that unwise?

    THOMAS KECK: Well, it's unwise because what it amounts to — and Justice Frankfurter said this all the time, Justice Black said it as well in the 1960s — is the judges just imposing their own will on the nation. If the right is not written in the constitutional text, then where does it come from? It's just the justices' own personal predilections, and surely that doesn't seem like a very good way to run a democratic political system, to have nine unelected judges imposing their will on the rest of us.

    Q: You talk in the book about the conservative justices being in tune with the conservative movement of the last 30 or 40 years. Certainly the liberal court before was also in tune with the New Deal and then with the liberal program from the '30s to the '70s.

    THOMAS KECK: Sure, that's absolutely right.

    Q: In fact, Earl Warren and William O. Douglas were explicitly political people coming onto the court.

    THOMAS KECK: That's definitely right. There are a couple of great recent books — there's a book by Lucas Powe on the Warren Court and there's a book by Michael Carmen on the court's civil-rights decisions throughout the 20th century. And both of these books argue — essentially, to oversimplify a little bit — they argue that the court follows the election returns. Whatever happens in the political system will sooner or later come to reshape the court, and most of the time the views of the Supreme Court are fully consistent with the views of the dominant governing coalition in national politics. And so in a sense I'm just telling the same story about more recent decades — that as the political system realigned in a political direction, the court followed suit.

    However, I want to emphasize that it's more complicated than that, and while that tells a big part of the story, it doesn't tell the whole story. For example, I talk in the book about the surprising number of landmark liberal decisions that continue to be announced by this court. We have this allegedly very conservative court where seven of the nine justices were appointed by Republican presidents, and yet we still get these landmark gay-rights decisions and the like. And so I don't think you can explain everything by saying, well, the political branches move in a conservative direction, so the court follows suit. That tells a big part of the story but not the whole thing.


    Continued: 1 | 2 | 3 | 4 | Next

    MARCH 5, 2005
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