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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


    Thomas Keck on judicial activism and the conservative Supreme Court

    Continued | Back to part 2

    Q: Talking about states' rights and the Commerce Clause, I saw the issue come up in relation to a medical-marijuana case that was argued in November.


    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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    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: That's right.

    Q: And they're trying to use a very similar reasoning to say that the federal government has no business prohibiting the state of California, for example, from allowing the medical use of marijuana or prohibiting individuals from producing it for their own use.

    THOMAS KECK: That's right. And it's a great case, because it sort of puts the conservative justices in a bit of a bind, because they're going to be forced, in this case, either to stick to what they've been saying about federalism and the limited power of the national government, or to stick to what we can all assume are their views about the war on drugs, which is that the federal government and the state governments as well should make all these dangerous drugs illegal and punish people for using them. And they've got to choose one of those positions or the other in this case, and I think it's likely that the conservatives — most of the conservatives — will abandon the federalism principles and allow the federal government to punish medical marijuana users. But we don't know that for sure.

    Q: What would be a rationale?

    THOMAS KECK: Well, they have some outs. There's no clear, hard and fast rule that says, you know, "Here are the things that the federal government cannot do," and [they can argue that] regulating drugs clearly crosses the line. It's a little messier than that. So they are not going to say they were wrong in U.S. v. Lopez — they're going to just say, "This case is different and here's why it's different," and they're going to distinguish it.

    One precedent that's going to play a big role in this case — they talked about it a lot during the oral arguments in November — is a New Deal-era case called Wickard v. Filburn, from the early 1940s, in which the court upheld a federal agricultural regulation that imposed quotas on how much wheat farmers were allowed to produce and harvest, and the quotas were applied even to a small farmer who was growing wheat for home consumption, for use on his own farm, and was not selling any of it, but he still exceeded his quota and was fined by the federal Agriculture Department. And he said: You gotta be kidding me! How does the federal government have the authority to regulate my own local use of wheat, not crossing state lines? It's not entering commerce at all. But the court upheld the regulation, and they said, if you take this guy's wheat production together with all the other wheat production in the country, it's all part of the same national market. If he wasn't growing wheat for himself, he'd have to buy it from somebody else.

    "[Medical marijuna] is a great case, because it puts the conservative justices in a bit of a bind, because they're going to be forced, in this case, either to stick to what they've been saying about federalism and the limited power of the national government, or to stick to what we can all assume are their views about the war on drugs."  

    Well, they talked about this on and on during the oral arguments in the marijuana case, because even if this particular person is growing marijuana for her own medicinal use — she's not selling it, it's not crossing state lines, etc. — it still could be thought of as part of a broader national market in marijuana. And if she were not growing it for herself she'd have to buy it from somewhere else. Now, conservatives have always hated the Wickard v. Filburn decision — but that doesn't mean that they're prepared to overturn it, and in particular, it doesn't mean they're prepared to overturn it in order to defend some marijuana users towards whom they're not that sympathetic anyway.

    Q: There's a place where Scalia is quoted in your book saying that the court's "new mode of constitutional thinking that relies not upon text and traditional practice to determine the law, but upon what the court calls 'reasoned judgment,' which turns out to be nothing but philosophical predilection and moral intuition." He's saying that the liberal justices tend to just take their values and impose them on the country. But what I found especially interesting is that he appeals to "text and traditional practice" — in other words, he's not only being textualist, but he's also saying that the court has an ability to uphold "traditional practice."

    THOMAS KECK: That's a great point, and depending on how you look at it, it either weakens Scalia's argument or strengthens it. As I noted in the book, Scalia's views are indebted in many ways to the views of Justice Black, who was an FDR appointee and was known throughout much of his career as a liberal activist. But what was most distinctive about Black is his belief in sticking strictly and only to the literal text of the Constitution, and by the height of the Warren Court years in the 1960s, Black was most often a conservative dissenter because he thought the court was going too far and departing from the text.

    So Scalia's views are, in many ways, similar to Black's, but Scalia has, I would say, built upon and modified Black's approach to some degree. Black would say, "All I ever need to look at is the literal words on the page." Black was famous for always having a copy of the Constitution in his suit pocket, and he would pull it out any time somebody asked him a question — some old, tattered copy of the Constitution — and he'd look up the First Amendment and give you his answer.

    And Scalia would say, okay, now that's naive. We can't really answer all these complicated modern questions by looking only at the literal words of the 1789 Constitution. So Scalia is willing to supplement the text to some degree — but the only thing he really thinks is legitimate to include in the court's analysis besides the original text is what he calls our national traditions.

    And he has a particular, and narrow, meaning of that word, "tradition." Essentially what he means is, here's how the court should decide a case: There's a law passed by state or federal government, and somebody comes to court and says that that law is unconstitutional. Here's what we do. First, we look at the literal text of the Constitution, and is there anything that clearly prohibits that law. If there's not, we also look at our longstanding national traditions regarding this specific kind of law, and if we have a long tradition of this kind of law, and it never seemed to be unconstitutional before, then it can't be unconstitutional today.

    So, if there's nothing in the literal text that prohibits a criminal abortion law, and if we have a long national tradition of criminalizing abortion, then criminal abortion laws are not unconstitutional, for Scalia. And so he goes a little bit beyond Black. He'll look at text and tradition, but it's still a pretty narrowly circumscribed approach.

    Q: Do you think that kind of reasoning might still serve as a critique of Brown v. Board of Education? Because that was a case where the court deliberately went against the majority will and the longtime practice.

    THOMAS KECK: Yes. One frequent criticism of originalist approaches is: What would you say about Brown? This is always thrown in the originalists' face. Brown was pretty clearly a departure. It was an innovation, it was a revision in the meaning of constitutional equality. And if you're going to argue that the court is never allowed to do that, then you've got to be prepared to say that Brown v. Board of Education was wrongly decided. The originalists can try to sidestep this question in various ways, or they can just try to ignore it and say: Whatever we think of Brown, it is a clearly established precedent and we're going to stick to it. But if their approach is applied consistently, Brown would have gone the other way.

    Q: Scalia seemed to use the same kind of reasoning in his dissent in Lawrence v. Texas, where he said that anti-sodomy laws are "deeply rooted" in American tradition, and that it's perfectly appropriate for states to use the law to show their "moral disapprobation."

    THOMAS KECK: That's right.

    Q: It seems like that approach does two things. It fails to recognize that the majority is capable of violating the rights of a minority, and it also seems to require us to live according to the standards of people 200 years ago.

    THOMAS KECK: Well, the first point is definitely a fair criticism, and Scalia just simply doesn't believe that it's a particularly significant function of the courts to protect minority rights against the majority. This is a democratic system. The majority gets to do what it wants, and the only exceptions are those things that are explicitly written in the Constitution. So if the majority wants to discriminate on the basis of race, Scalia will say no, that's prohibited by the Fourteenth Amendment. But if the majority wants to discriminate against gays and lesbians, they're free to do so. Right? He just doesn't think that's an important function of the courts.

    The second issue, Scalia, I think, has a better response to. Or at least, this is what his response would be. He would say, no, we don't have to stick to what people said 200 years ago. We are free to change whenever we want, but that change has to be conducted by democratic means. And so if the people of the state of Texas want to repeal their sodomy law, they should call their elected legislators. If the people of the United States want to prohibit any sodomy laws in the future, they should pass a constitutional amendment. Either of those procedures are democratic, and so they're perfectly legitimate for Scalia. But what we should not have is the unelected courts imposing this pro-gay ideology on the nation if the nation doesn't want it. So that's his answer.

    Q: Isn't it facile to think that a majoritarian legislature will protect the rights of minorities?

    THOMAS KECK: Yes, I think so. And, you know, one of the implications of Scalia's approach on gay rights, on religious freedom, on lots of other issues, one of the implications is that the rights of minorities will be left unprotected. Right? Majorities will be free to trample upon them.

      "One frequent criticism of originalist approaches is: What would you say about Brown? This is always thrown in the originalists' face. Brown was pretty clearly a departure. The originalists can try to sidestep this question in various ways, or they can just try to ignore it. But if their approach is applied consistently, Brown would have gone the other way."
    And this is one of the key areas in which some of Scalia's conservative colleagues have disagreed with him. So O'Connor and Kennedy, who were both appointed by President Reagan, have been in the majority on these gay-rights decisions. Kennedy has written the opinions. And they just flatly disagree with Scalia, and they simply believe that it is indeed an important function of the courts to protect minority rights against the majority, and if the courts don't do it nobody's going to do it. And therefore, even though the presidents who appointed them, and many of the political supporters of those presidents, would disagree, they're going to vote to put gay rights into the Constitution.

    Q: You write about the evolution of race-conscious laws, that there were points in the '60s and '70s where affirmative action, not just equal protection, began to be written into the law, and the conservative position was to oppose the legislative outcome.

    THOMAS KECK: That's right.

    Q: So that strikes you as an example of judicial activism rather than judicial restraint?

    THOMAS KECK: Sure. If democratically accountable institutions of government — whether it's a state legislature or a federal administrative agency that is accountable to Congress and the president, or even a public university that is ultimately accountable to the governor and state legislature — whoever it is, if some democratically accountable institution of government adopts a race-conscious affirmative-action policy, and if conservatives turn to the courts and ask the courts to strike these policies down, I call that an example of judicial activism. Because it's a call for the courts to play a broader, more active, more interventionist role in some contemporary political dispute. The "restrained" position would be for the courts to defer to the decisions of the other institutions of government.

    Q: In your book, you talk about the conservative justices continuing to rely on "rights-based" reasoning, which we think of as liberal, to do things like promote federalism or to "thwart congressional efforts to expand legal rights guarantees." What do you mean by that?

    THOMAS KECK: Most of the instances in which the conservative justices on the current court have argued for an active conception of judicial power — have urged the court to strike down a state or federal law, for example — in most of those instances, the conservatives have justified those decisions in the language of constitutional rights. And that shouldn't be surprising. Rights talk, rights rhetoric, is and for a long time has been playing a very prominent role in American politics, and it's not surprising that conservatives rely on it as much as liberals do.

    But as I said before, it complicates our inherited understanding of debates about the proper role of the court, because the way people used to talk about the court was, you had liberals who advocated an "active" court protecting constitutional rights, and you had conservatives who advocated "restraint" — and that's just no longer an accurate description.

    And so there are lots of examples — whether it's property rights, or the rights of university applicants to equal treatment, or the rights of religious organizations to have equal access to government resources — there's just case after case after case where the contemporary conservative judges and lawyers have been arguing for the court to actively protect some particular constitutional right and the liberals have been arguing for the court to stay its hand, to move more cautiously and with more restraint.

    Q: Are there other reasons for thinking of the conservatives as "activists"?

    THOMAS KECK: Yeah, I think there are several reasons. One is the language of rights that they use, and along with that I would include the language of judicial supremacy, which is just sweeping assertions about the Supreme Court's final and authoritative role as interpreter of the Constitution.

    A second reason that it makes sense to think of the contemporary conservatives as activists is just the sheer frequency with which they've voted to strike down federal laws. During the latter half of the Rehnquist Court, since 1994, the court has been striking down federal statutes more frequently than at any previous time in its history.

    And a third reason that it makes sense to call the contemporary conservatives activists is that, unlike any other period in the court's history, the contemporary court recognizes no political thickets. And a "political thicket" is a term coined by Felix Frankfurter back in the 1960s to describe those kinds of political disputes that the court just did not want to get caught up in. The court, Frankfurter said, should not enter the reapportionment controversy because it was such an inherently politicized process of how and where to draw electoral district lines that the court was not going to succeed in resolving it. The court had nothing to offer. The court was just going to get caught up in the political disputes itself. It should just simply stay out of it, right? And the current court recognizes virtually no similar examples — there are no political thickets. There is nowhere that the current court is afraid to tread. And the best example of this, of course, is the 2000 election controversy.

    Q: Yes, Bush v. Gore. I really expected the court to come up with a unanimous decision that would make sense to everyone. But it didn't.

    THOMAS KECK: A lot of people expected that! [Laughs] No, scholars were surprised when the court agreed to hear the case, because the legal arguments were generally perceived to be particularly weak, and because it was such a divisive political controversy.

    Justice Breyer pointed out in his dissenting opinion in Bush v. Gore that sometimes the justices fool themselves into thinking that they — the unelected and independent judiciary — can step in and settle this political dispute to everyone's satisfaction, and that by entering this political thicket the court will bring principle to bear on politics. But what really happens, Breyer says, is the court just brings politics to bear on itself. And that instead what happens is that the court gets infected with the same political divisions that the rest of the country is infected with. And there's a way in which that was true of Bush v. Gore, because the court divided on liberal-conservative lines, it was a very closely divided decision, and it made a lot of people angry.

    On the other hand, the decision certainly succeeded in the short run, right? I mean, the court's decision was respected, and Bush became the president, and most people in the country seemed sort of happy to have the issue settled.

    Q: Although, the court wasn't asked to end the issue — the court was asked to resolve a dispute about ballot-counting. And yet somehow, in the end, it said: "The time for deciding is over. Just end it." And I didn't see what the constitutional basis was.

    THOMAS KECK: I would put it this way: Prior to the election, prior to November 2000, if you had asked legal scholars, you had presented them with this constitutional argument and this legal argument and said, "Is this a meritorious argument," you would be somewhere close to unanimous in saying that, no, it was not a meritorious argument. So after the decision, some conservative scholars have defended the court's reasoning, but I think, to the extent anybody can have a fair and objective reading of the court's legal arguments, they were not that strong. Which, of course, raises the suspicion that the justices were motivated by something besides those legal arguments.

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    MARCH 5, 2005

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