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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 3

    Q: You mentioned the issue of public acceptance of the court's authority, which comes up when you're studying the early court, and occasionally there have been a couple of crises where people have been extremely unhappy with the court's direction. And in your book, you write: "So long as the court keeps issuing decisions like Lawrence v. Texas, liberals and Democrats will not abandon their long-standing support for the institution." What's the alternative? What happens if the public loses confidence in the court?

      
    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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    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: Well, I mean, it's a great question. [Pauses.] On the one hand, the court's power depends to a significant degree on its legitimacy, because the actual institutional resources at its disposal are relatively limited. If the people and the political elites stopped paying attention to the court or stopped giving any support to the court's decisions, then the court's power would be significantly weakened.

    On the other hand, the court seems to have a fairly large reservoir of support, a fairly large amount of leeway in issuing some controversial decisions, which obviously make the losers angry and critical of the court, at least in the short run, but which don't fatally undermine the support for the court. And in the foreseeable future, it seems like the court is going to do just fine, right? Particularly given O'Connor and Kennedy's decisive role in pushing the court in a liberal direction sometimes, in a conservative direction sometimes, they are sort of keeping everybody happy — at least some of the time.

    Now, we can certainly imagine a scenario in the coming years, if, say, President Bush gets several Supreme Court appointments this term, and if he chooses to nominate very conservative people to fill those vacancies, and if he manages to get those nominees through the Senate — I mean, all of those are big "ifs" — but if all of those things happened, the court could move in a much more conservative direction in the coming years. The court could overturn Lawrence v. Texas and Roe v. Wade. I don't think this is a likely scenario but it's possible.


      
    "O'Connor is famous for this among constitutional scholars. In every decision, she either writes the majority opinion or she writes a concurring opinion, and she tries to limit the decision's reach. So she says, yes, this is what we're deciding today — but here's all the particular facts of this case that are relevant, and in a slightly different case tomorrow, we might come out the other way."  

      
    And if all that happened, the court would substantially undermine public support among liberals and Democrats. It might increase public support among conservatives, but if the court goes too far in the direction of looking like it's kind of "owned" by one political faction, then the general consensus is that in the long run, that would be bad for the court's power and authority. It would then look just like any other political institution, and there would be no reason for anybody to pay any attention to rulings that they disagreed with.

    Q: I've felt like some of their abortion-related decisions over the last 15 years were a little bit political in the sense that they didn't want to outlaw abortion or open up the states to outlaw abortion, because they didn't want to suffer the political consequences of the population turning on that issue. But at the same time, they would be willing to support something like parental notification, because that sounds sensible, right?

    THOMAS KECK: That's right. And if you look at public opinion polls on abortion, that's pretty much where the public is — most people support abortion rights, but most people also support some restrictions on abortion. And so you can make a very strong case that at least some of what the court has been doing has been trying to, whatever you want to call it — follow the election returns or cater to public opinion or act strategically — so as to increase public support for the court as an institution. There are lots of different ways you can characterize it, but it amounts to the same thing.

    Q: I've always thought that the extraordinary thing about Roe v. Wade is that it satisfies nobody philosophically but it comes down in the middle enough that the American people have been willing to live with it for a long time.

    THOMAS KECK: I think that's right. I mean, conservatives would say that it doesn't come down anywhere near the middle, and conservatives have tried to characterize the court's position as, you know, "abortion on demand," and essentially being an extreme position. But even if that were true in the 1970s — and it was an overstatement even then — it's certainly not true now. And after Planned Parenthood v. Casey, as you say, the court is willing to allow a certain number of restrictions on abortion.

    And it's one of those issues that so sharply divides the political system that even many political elites are very happy to have the court resolve this issue. If you're a Republican elected official who has a lot of pro-life supporters, you know, you are very happy to sort of have the Supreme Court to beat up on — but that you don't have to make this decision yourself. Because if Roe v. Wade weren't there, you would be free to outlaw abortion, and if you had to actually vote on that decision, you'd be making a lot of people angry, whichever way you went. But you can avoid that — you get to stand up and criticize Roe v. Wade every day, but you never actually have to vote on the issue because the court has taken it off the table.

    Q: What do you think accounts for the three conservatives' failure to recruit O'Connor and Kennedy to their side more often? Because I think of them as fundamentally conservative.

    THOMAS KECK: Some scholars have tried to describe it as just a difference between two different kinds of conservatives. There's a great new book by Mark Tushnet, who's a constitutional scholar at Georgetown, that makes this argument — that O'Connor and Kennedy are the sort of old-fashioned "liberal" Republican, which is a little bit of a dying breed now. They are relatively conservative on economic issues, but they don't really agree with the religious right on anything. And then you have Scalia, Thomas and Rehnquist, who are more the "new right" Republicans — the post-Nixon, post-Southern-strategy, post-religious-right kind of new Goldwater-Reagan vision of the Republican Party. And so that could be part of the story, right? And so O'Connor and Kennedy are either less conservative or just a different kind of conservative than Scalia, Thomas and Rehnquist.

    But I don't think that's the whole story, and I don't think that's actually the best way to understand the division. I think it's more accurate to describe it as a jurisprudential division among the conservatives, and there are a couple of different ways to characterize it.

      
      "In addition to asking the nominee's position on various issues of liberal activism, they should also ask the nominee's position on various issues of conservative activism. So, what is the nominee's position on this recent revival of federalism? What is the nominee's position on court decisions striking down affirmative action, or court decisions striking down property rights?"
      
    The way I describe it in the book is that Scalia, Thomas and Rehnquist believe that the Constitution is a strict system of rule that can be easily understood, more or less, and that where the Constitution prohibits some kind of government decision, the court should enforce that decision as actively as it possibly can, and that where the Constitution is silent, the court should do nothing. And that's their version of judicial restraint. It leads to a lot of activism in some contexts but a lot of restraint in others.

    O'Connor and Kennedy have a different version. They don't have any "political thickets." There's nothing that they could conceive of on which the Constitution is silent. There's always the potential for the court to intervene — but when the court does intervene, they want it to do so cautiously and incrementally and one case at a time. And so, O'Connor is famous for this among constitutional scholars. In every decision, she either writes the majority opinion or she writes a concurring opinion, and she tries to limit the decision's reach. So she says, yes, this is what we're deciding today — but here's all the particular facts of this case that are relevant, and in a slightly different case tomorrow, we might come out the other way.

    So that's a jurisprudential division — you could call it a division between the formalists and the pragmatists. And I think that fundamental disagreement about the role of the court explains all the ways in which Scalia, Thomas and Rehnquist have failed to get a conservative majority.

    Q: President Bush has said that he wants to nominate more justices like Scalia, and, given the other confirmation processes over the last 30 years — I guess since the '60s — you can predict that any confirmation hearings would be very contentious. What do you think would be interesting points that could be brought out — or that might not be brought out but should be — in hearings like that?

    THOMAS KECK: Everyone's gearing up for the fight. Everyone's anticipating that Rehnquist's retirement will come any day now. I mean, everyone was anticipating it was going to come right after the election, and so everyone's still waiting around. Certainly, Democrats in the Senate are gearing up for the fight. And it is certainly the case that Democrats in the Senate will question the nominee about abortion, right?

    Q: And the nominee will say, "Well, I haven't discussed it with anybody."

    THOMAS KECK: Exactly. But they'll try to push him a little bit — him or her. It's abortion rights in particular — but that's also kind of a stand-in for the more general view of liberal visions of constitutional rights and liberties. So gay rights would be included in there as well, and traditional civil rights and racial equality and gender equality and separation of church and state — a whole panoply of sort of liberal, Warren Court-style rights and liberties issues.

    And so the person will get questioned on that, and that's an important set of questions to ask, and the potential Bush nominees really do disagree, to some extent on this question. There are people on Bush's short list who would definitely vote to overturn Roe v. Wade, and there are people who would probably not cast such a vote. So that's an important thing to look at.

    But there are a lot of other important issues to look at, and I would hope that the Democrats would try to address some of these as well. And the clearest way to think about it is, in addition to asking the nominee's position on various issues of liberal activism, they should also ask the nominee's position on various issues of conservative activism. So, what is the nominee's position on this recent revival of federalism? What is the nominee's position on court decisions striking down affirmative action, or court decisions striking down property rights? All the different examples of conservative activism that I talk about in the book.

    And again, Bush's potential nominees differ on this question. They probably all — everybody in his short list — support the Rehnquist court's recent federalism decisions, more or less. But the "more or less" is a really big deal, because O'Connor, for example, supports those decisions but brings them only so far and no further. Clarence Thomas wants to bring them much further — even if it means that all the federal laws enacted since the New Deal are unconstitutional, so be it. So there's a lot at stake with whether Bush appoints another O'Connor or another Thomas, and it's up to Bush to make that decision in the first instance, and then it's up to the Democrats in the Senate to figure out which one it is and then decide what to do.


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