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Whose Originalism?—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on May 6, 2010.

Whose Originalism?
By Linda Greenhouse ’78 MSL

Used as an epithet, “activist judge” is almost always applied to a judge who has just issued a decision that the speaker doesn’t like. Conservatives affix the label to the Supreme Court of the 1960’s and 1970’s, as well as to anything they object to about the current court. The ink on Justice John Paul Stevens’s letter of resignation last month was barely dry before conservative political candidates and bloggers lined up to bid good riddance to “the liberal activist now leaving the court.”

Exactly what the conservatives’ beef was with Justice Stevens wasn’t clear. Presumably, it was something other than the Stevens majority opinion in Kelo v. City of New London, the 2005 decision that left democratically elected local governments free to condemn private property for the purpose of economic development.

Progressives, of course, have been having a field day denouncing the Roberts court’s decision in Citizens United v. Federal Election Commission, which opened the door to unlimited political spending by corporations and overturned recent precedents in order to reach that result. The ruling was “an astounding example of judicial activism,” according to Representative Jerrold Nadler, a New York Democrat who in his capacity as chairman of the subcommittee on the Constitution promptly convened a hearing on the decision’s implications.

Into this linguistic and jurisprudential thicket has stepped the former constitutional law professor Barack Obama, in a conversation with the pool reporters traveling with him on Air Force One last week. Asked whether he would use the pending Supreme Court nomination to push back against “conservative judicial activism,” the president responded with a 200-word soliloquy so densely packed as to lend itself to a variety of interpretations — and misinterpretations.

Characterizing an earlier era’s attacks on the Supreme Court, Mr. Obama said: “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s the feeling was, is, that liberals were guilty of that kind of approach.

“What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error,” he continued, and added, “The concept of judicial restraint cuts both ways.”

Was the president in fact, as some have suggested with either glee or dismay, imposing a kind of moral equivalency on the court then and the court now — a kind of “we had our activists and now they have theirs, and both made mistakes, so let’s move on”? Has he fallen into such apostasy as to cast aspersions on the very judicial accomplishments that liberals treasure?

While it’s possible to interpret his words that way, I read them differently. In fact, I think he meant the opposite of equivalency, and I think he said so, albeit cryptically, when he offered this description of what he called conservative jurisprudence: “What you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly elected representatives.” He went on to say that, by contrast, “the core understanding of judicial restraint is that, generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, etc., that the administrative process that goes with it, is afforded some deference as long as core constitutional values are observed.”

Obviously, those sentences constitute neither a sound bite nor a law review article. Said in the back of an airplane, they reflect a man’s musings on something he has thought long and hard about.

As a state legislator in 2001, for example, he was the guest on a Chicago public radio station talk show and said this: “If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples.” In other words, there was a proper time to put judicial activism to work in the cause of dismantling barriers and fixing democracy’s deficits. To paraphrase Barry Goldwater, restraint in defense of the status quo was no virtue.

In the president’s Air Force One remarks, I understand him to be saying that when conservatives today dress themselves in the cloak of legal theories like originalism and call it restraint, they are actually empowering judges to engage in an equivalent amount of activism — but in the opposite direction, toward the restoration of an outdated constitutional vision, all in the name of restoring the framers’ original understanding.

What does all this mean for filling the Stevens vacancy? Anyone who studies Barack Obama’s career will soon observe that he is no romantic about the Supreme Court. In this, he distinguishes himself from those members of the Democratic coalition who are still in mourning over the Warren court that ended two months before Barack Obama’s eighth birthday. In the president’s view, the court is institutionally ill suited to solve the country’s problems. It’s hard to imagine that he wants to invest capital and energy into trying to turn the court into something he believes it was never intended to be. In this, he has been consistent — and rather consistently misunderstood.

In that 2001 Chicago radio discussion, State Senator Obama observed that although people often described the Warren court as radical, “it wasn’t that radical.”

He continued: “It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way — that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you; it says what the federal government can’t do to you; but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that.”

When the audio of those remarks suddenly and mysteriously appeared on YouTube during the 2008 presidential campaign, the right-wing blogosphere echoed with faux shockwaves along the lines of: “Obama says Warren court not radical enough.”

It is certainly possible to take issue with the president’s view of civil rights history. In fact, the civil rights movement was not fixated solely on the courts; a great deal of legislative work went into achieving such landmark statutes as the Civil Rights Act and the Voting Rights Act, which the Supreme Court had the wisdom to uphold against non-trivial challenges. The progress of those years might be seen in retrospect as a rare and indispensable partnership among the three branches of government.

In any event, those days are gone, and the next chapter of Supreme Court history is about to unfold. The president doesn’t think the Warren court was insufficiently radical, and he doesn’t think that all judicial activism is the same. That’s his version of the framers’ original intent, and at this moment, his view is the one that counts.