Adam Cohen on "Conservative Judicial Activism":

In this column, NY Times reporter Adam Cohen attacks the "conservative judicial activism" of the Roberts Court. Unfortunately, Cohen's argument is riddled with flaws and misrepresentations. Here are his main points:

The [conservative] individuals and groups that have been railing against judicial activism should be outraged. They are not, though, because their criticism has always been of “liberal activist judges.” Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.

The most basic charge against activist judges has always been that they substitute their own views for those of the elected branches. The court’s conservative majority did just that this term. It blithely overruled Congress, notably by nullifying a key part of the McCain-Feingold campaign finance law, a popular law designed to reduce the role of special-interest money in politics.

It also overturned the policies of federal agencies, which are supposed to be given special deference because of their expertise. In a pay-discrimination case, the majority interpreted the Civil Rights Act of 1964 in a bizarre way that makes it extremely difficult for many victims of discrimination to prevail. The majority did not care that the Equal Employment Opportunity Commission has long interpreted the law in just the opposite way.

The court also eagerly overturned its own precedents. In an antitrust case, it gave corporations more leeway to collude and drive up prices by reversing 96-year-old case law. In its ruling upholding the Partial-Birth Abortion Ban Act, it almost completely reversed its decision from 2000 on a nearly identical law.

Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech. Most conservative (and even more so libertarian) jurists would agree that failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits. A few judicial conservatives (such as Robert Bork and University of Texas lawprof Lino Graglia) have called for the virtual abolition of judicial review; so have a few liberals, such as Harvard professor Mark Tushnet, and Stanford's Larry Kramer. But such views are very much in the minority among conservative jurists and legal scholars - almost as much so as among liberals.

Cohen also implies that conservatives contradict themselves by supporting "overturning" of the Court's precedents and invalidation of decisions by federal agencies. Few if any conservative jurists believe that the Court's precedents are somehow sacrosanct, especially not if they conflict with the text and original meaning of the Constitution. That is particularly true of the very recent precedents (McConnell v. FEC, Stenberg v. Carhart, Grutter v. Bollinger) mentioned in Cohen's post, all of which were decided within the last few years by narrow 5-4 majorities. Such precedents have failed to gain general acceptance in the legal community (as their narrow 5-4 margins suggest), and are too recent to have engendered much in the way of reliance by the general public. The degree to which the Court should defer to its own flawed precedents is controversial among conservatives (as it also is among liberals and libertarians). There is no general conservative consensus in favor of following wrong precedents, and indeed most right of center legal scholars tend to the view that flawed precedents should be overruled, or at least severely constricted. The same points apply to flawed decisions by federal agencies. It is also worth noting that the Court did not in fact "overturn" the precedents Cohen discusses, but merely limited the scope of their application. Perhaps Cohen means to say that they have been so severely limited as to virtually overturn them. If so, he needs to provide an argument justifying this far from obvious conclusion instead of a bald and misleading assertion.

Cohen also contradicts himself on these issues. If judicial conservatives are supposed to applaud judicial restraint in overruling laws enacted by legislatures, why shouldn't they support the overruling of precedents that themselves struck down legislative enactments (as was true of Roe v. Wade and Stenberg v. Carhart)? Yet Cohen criticizes conservatives as inconsistent for supporting the Court's partial retreat from Stenberg in Gonzales v. Carhart.

Finally, Cohen commits an egregious factual error in claiming that the Supreme Court conservatives ruled in its school affirmative action decisions that the Constitution "protects society from integration." As Cohen surely knows, the Court merely ruled that the Constitution forbids some types of racial assignment of students. In no way did the justices claim that "integration" is itself unconstitutional - especially if it is achieved by racially neutral policies.

There are plenty of legitimate ways to criticize the Roberts Court conservatives' recent handiwork. I have taken issue with them on some important points myself (.e.g. - here). Cohen's critique, however, fails to rise above poorly substantiated name-calling.