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  • Interview: Eric Foner on freedom
  • Interview: George McGovern on Vietnam, Iraq and the election of 1972
  • Interview: Maurice Isserman on the 1960s, Vietnam and Iraq
  • 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 on judicial activism and the conservative Supreme Court



    Continued | Back to part 1

    Q: I've read where people suggested that the Burger and early Rehnquist courts were really the "Brennan Court." How did it happen that these conservative justices didn't manage to turn the tide of the liberal record up to that point?

      
    THOMAS KECK
     

    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.

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     RELATED ARTICLES
    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

    THOMAS KECK: It's a great question. I mean, Nixon [along with Ford] appointed four justices, and he had the explicit goal of remaking the court in a more conservative direction. And he succeeded in some ways — there are some areas of the law that moved in a more conservative direction, although maybe not as far as Nixon would have liked. But many other areas of the law did not, and some of them the Burger Court continued to not just stick with the Warren Court's decisions but actually build on them and expand them. And that, I think, is a great example of the fact that the court does not simply, and straightforwardly, and automatically, follow the election returns. Right? It's impossible to understand the Supreme Court without understanding its political context, but you also can't reduce it to its contemporary political context.

    And the justices are influenced by a variety of legal ideas which have roots not solely in the political system and which have at least some degree of autonomy from the political system. And so that's one thing that influences the courts. So for example, three of Nixon's four appointees were in the majority in Roe v. Wade, right? Well, that seems surprising — but of course, abortion rights was not on Nixon's mind when he was appointing them. He was primarily concerned with school busing and the rights of criminal defendants, and he was trying to find law-and-order conservatives, and abortion rights simply wasn't on anyone's agenda. And when that new issue arose and came to the court, it was sort of unpredictable how these justices would respond. So it's clearly the case that presidents can influence the direction of the court, but they don't come anywhere close to having full control.


      
    "Three of Nixon's appointees were in the majority in Roe v. Wade, right? Well, that seems surprising — but of course, abortion rights was not on Nixon's mind when he was appointing them. Abortion rights simply wasn't on anyone's agenda. And when that new issue arose and came to the court, it was sort of unpredictable how these justices would respond."  

      
    Q: Looking at your book, since you mention what Nixon's priorities were, one thing I was struck by was how much the talk about the court these days focuses on cultural issues rather than criminal or procedural issues.

    THOMAS KECK: Yeah.

    Q: How did those become so prominent, certainly since Roe v. Wade?

    THOMAS KECK: Well, a couple of things happened. One is you just had the rise of the religious right in American politics, which, at the time Nixon was first elected in '68, pretty much didn't exist. It certainly didn't exist as any organized and influential force in American politics. And so the religious right activists, and organizations within the religious right, have been very concerned with issues like abortion. And these folks have been particularly focused on the courts in many ways, in part because they have viewed a number of, in their view, illegitimate liberal rights-protecting decisions as some of the best examples of the problems with the American political system that they want to fix. And so Roe v. Wade is the best example, but liberal activist decisions on gay rights or obscenity protection or separation of church and state — there's a wide variety of examples of these decisions that were actually some of the key sources for the formation and growth of the religious right. So once this movement becomes a powerful force in American politics, it is not surprising that it turns on the courts and tries to get their elected leaders to remake the courts, to overturn Roe v. Wade, to put a stop to same-sex marriage, to relax the separation of church and state, etc.

    Q: Let me ask you about a few particular issues and how the court has acted on them. One that you make a point of in the book is U.S. v. Lopez. Why is that important?

    THOMAS KECK: It's a very important case. It was in 1995, and it was the first time in almost 60 years that the court had struck down a federal law on Commerce Clause grounds. And what that means is that the original Constitution in Article I lays out the powers of Congress, and it says Congress shall have the following powers, and anything not listed is not a legislative power of the federal government and belongs to the states. But of course, sometimes disputes arise over the precise meaning of some of the powers that were listed, and one of the most important such powers is that Congress should have the power to "regulate commerce among the several states." That's known as the Interstate Commerce Clause, and the idea is that if commerce was crossing state lines it should be regulated by the federal government.

    Well, the modern Congress, the post-New Deal Congress, has passed a wide, wide, wide range of regulatory legislation under the authority of the Commerce Clause, including many federal laws that don't really look — at least on the surface — like regulations of commerce. So, for example, the '64 Civil Rights Act is passed under the authority of the Commerce Clause. There are a variety of federal gun-control laws passed under the authority of the Commerce Clause. And for almost 60 years after the New Deal, the court went along with this and the court essentially — along the lines of judicial restraint that we talked about — the court said, "Look, it's not our job to second-guess the legislature. If Congress thinks this is an important national problem, Congress should have the power to address it, so long as they're not violating some other specific provision of the Constitution."

    And again, that went on for almost 60 years until 1995, when the court put on the brakes and said, "Wait a minute, there has got to be a limit. If we are still governed by our original Constitution, which said quite clearly" — and the conservatives are certainly right about this — "that the federal government is a government of enumerated powers, then there has got to be a limit. And the federal Gun-Free School Zones Act is not a regulation of commerce. And so we're going to strike it down."

    Both education and criminal law, which are the two things that the law had anything to do with, had been subjects of state control. The federal government was intruding on the province of the states, and the court said, henceforward we're going to start to take these principles more seriously, and if Congress goes too far, we're going to strike it down.

      
      "Rehnquist thinks that the modern court, the post-New Deal court, abandoned its duty to enforce these principles of federalism. And he tried for many, many years, beginning in the early '70s, to persuade the court to recover these first principles, and then eventually, beginning in 1995, he started to have some success."
      
    Q: The law that was struck down didn't govern the sale of guns or transporting guns or anything like that. It was possessing a gun within a single state.

    THOMAS KECK: It was possession of a gun within a certain number of feet of a school. It was called the Gun-Free School Zones Act, and so you can't bring a gun to school. I mean, it's behavior that was already criminalized by all 50 states anyway, but because we want to be tough on crime and because this is popular, the federal government makes lots of things federal crimes and imposes longer sentences and gets them prosecuted in federal court by federal prosecutors, and that certainly has not been unusual in recent decades.

    Q: So I'm thinking that particular law was not crucially important, but is the decision important because it was pointing in some particular direction?

    THOMAS KECK: That's exactly right. The court sort of announced to constitutional scholars, to lower-court judges throughout the country, and to Congress and the president: Look, I know for 60 years we've been saying Congress could pretty much pass any kind of law it wants. Well, that's not the case anymore. We're going to take these constitutional principles seriously, and there are a wide variety of other laws that, if you follow what we say in this opinion today, might be constitutionally suspect as well.

    Q: In that decision, Rehnquist wrote that this decision was an occasion for returning to "first principles," and the first principle was states' rights.

    THOMAS KECK: That's right.

    Q: How does he arrive at states' rights being a first principle elevated above others?

    THOMAS KECK: Well, he wouldn't say that it's the only first principle, but Rehnquist has long held that states' rights are a fundamental feature of our constitutional system, that one of the framers' principal strategies for protecting liberty and preventing tyrannical government was to divide governmental power amongst various institutions. So within the federal government it's divided up amongst the three branches, and then it's also divided between the federal government and the states. And if you go back and look at the Federalist Papers, James Madison talked about this strategy a great deal as very important to protecting liberty and preventing tyranny.

    Rehnquist thinks that the modern court, the post-New Deal court, abandoned its duty to enforce these principles of federalism. And he tried for many, many years, beginning in the early '70s, to persuade the court to recover these first principles, and then eventually, beginning in 1995, he started to have some success.

    Q: Clarence Thomas has tried to develop this kind of thinking as well, and I was struck by his dissent in the Term Limits case where he said: "Nothing in the Constitution deprives the people of each state of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the states or the people." He seems to be saying that a state could impose ANY kind of criteria on who's allowed to run for Congress.

    THOMAS KECK: Uh, yes, he does seem to be saying that.

    Q: That seems ironic in the wake of poll taxes and literacy tests, and all the things that prevented black people in particular from voting or seeking office.

    THOMAS KECK: Well, Clarence Thomas is extremely suspicious of conventional civil-rights law. It's not that he's opposed to racial equality, but I guess I would want to say he has a particularly narrow, or formalistic, or originalist, approach to what sort of equality is required by the Constitution. And so Thomas would certainly say that it would be unconstitutional if a state said African-Americans are not allowed to run for Congress. That would be unconstitutional because it violates some other provision of the Constitution — namely, the Equal Protection Clause.

    But he has a fairly narrow understanding of the Equal Protection Clause, so it would not be surprising at all, if the issue were new today, if Thomas said that poll taxes were not unconstitutional. We've always had poll taxes — again, say we were in 1960 and we're talking — we've always had poll taxes; they've always been considered perfectly constitutional in the past. The Constitution doesn't say anything different today than it said yesterday. If the people want to adopt the poll tax, they're free to do so. Now, if the people want to explicitly discriminate on the basis of race in the law, Thomas would say they can't do that, but that's about as far as he would go.


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