Have you ever been out to coffee with a spectacularly skinny woman who—insisting she never eats refined flours or sugars—orders only the watercress-wheat-germ smoothie, then proceeds to nibble, tunnel into, and then hoover down your entire caramel-apple cheesecake until the last three graham cracker crumbs are cowering in terror in your napkin?
That’s what it’s been like this year, hanging out at the U.S. Supreme Court. This virtuous, self-denying paragon of judicial restraint has gorged and stuffed itself on constitutional cheesecake, somehow all the while insisting that it’s on a diet.
I am by no means the first court-watcher to comment on the growing propensity of the high court to, well, grow. Before 1995, the hallmark of the Rehnquist Court was caution, understatement, and narrowness. The court made few efforts to undo even the radical work of the Warren Court, confining itself to the margins of the legal, and thus the national, landscape. Joan Biskupic recently noted the court’s “new tendency to take longer strides in the law, and therefore be more of a player in national affairs.” Tony Mauro describes the court’s new boldness as a progression, dating from United States v. Lopez, the 1995 case invalidating Congress’ “Gun-Free School Zones Act.” From there it was a short stride to a 1997 case invalidating the “Religious Freedom Restoration Act,” and then last year’s “Violence Against Women Act.” So, there should perhaps be no surprise in this year’s high court gobbling up big mouthfuls of the “Illegal Immigration Reform and Immigrant Responsibility Act” (in Deboris Calcano-Martinez, et al. v. Immigration and Naturalization Service and Immigration and Naturalization Service v. Enrico St. Cyr) and the “Clean Water Act” (in Solid Waste Agency v. United States Army Corps of Engineers). The court took more than tiny nibbles out of other pieces of legislation, including Title VI of the Civil Rights Act, eviscerating the right of an individual to sue (in Alexander v. Sandoval) and immunizing states from suit under the Americans with Disabilities Act (in University of Alabama v. Garrett). In both of these latter cases, the intent of Congress to the contrary was clear. But still the court ate and ate some more.
In a vacuum, it looks like nothing. A few nibbles here, a forkful there. But when you hold it against the popular conception of the Rehnquist Court as a model of judicial humility and restraint, something doesn’t compute. This is a court happy to overturn acts of Congress, and “conservative” courts aren’t supposed to be obtrusive and public. But this is not your big sister’s Rehnquist Court.
One explanation is that this is a conservative court, conscientiously (and conservatively) returning power to the states. But that is not the case in the state of California, for instance, which was not allowed to decide for itself on the legality of medicinal marijuana (in United States v. Oakland Cannabis Buyers’ Cooperative), and certainly not in the state of Florida, whose Supreme Court was not allowed to interpret its own voting law in Bush v. Gore.
It’s also a vast oversimplification to say that this is simply a conservative court bent on rolling back all civil rights and returning us to the era of the Framers. Because this same court that barred Congress in half a dozen ways this year from promulgating rules to protect civil rights beneficently made itself the bestower of individual rights in several other cases, including the astonishing case of Kyllo v. United States (giving us the right to grow pot and grill indoors free from warrantless uses of thermal imaging devices). Another odd one is Bartnicki v. Frederick Vopper (giving the press the right to report illegally intercepted cell-phone conversations if they involve matters of public concern). Overturning several city law-enforcement practices, the court went on to enshrine the right to be free of warrantless dog sniffs at checkpoints (in Indianapolis v. Edmond) and coercive drug tests of pregnant women (in Ferguson v. City of Charleston). No, this isn’t necessarily an ogre-court, opposed to individual rights. It’s simply opposed to any individual rights that it did not itself invent.
This humble, self-effacing court, as an enraged Justice Scalia observed, dissenting in PGA Tour v. Martin, took it upon itself to even make some final binding rulings on the nature of golf. Sneered Scalia:
It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power [t]o regulate Commerce with foreign Nations, and among the several States, U.S. Const., Art.I, 8, cl.3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?
All of which would be somewhat more palatable, if no less amusing, were it not for the fact that Scalia, Thomas, Rehnquist, and the other paragons of judicial restraint are not exactly on the Slim-Fast plan when it comes to invalidating, overriding, and trimming back rights and precedent. Indeed the “strict constructionist” wing of the high court (which may well expand by several hundred pounds over the next few months if rumors of summer retirements are true) was not all that restrained when it came to punching an arm through the venerable wall between church and state (in Good News Club v. Milford), holding that religious service and instruction in public schools are protected free speech. And (in Palazzolo v. Rhode Island) the five-majority went ahead and granted the right to challenge development restrictions as an unconstitutional government “taking” from an individual who had bought property after those development restrictions were in place.
Like a big, crazy Pac- Man, the Rehnquist Court is munching its way across the national stage, downing strawberries and oranges and the Chevron test (the standard by which the Supreme Court used to defer to agencies attempting to interpret their own rules), and no one knows how to begin to pull the plug.
If the crazy activism is indeed coming from both the right and the left wings of the court, it is worthwhile to try to discern what’s happening in the middle. As Jeff Rosen pointed out this spring, Justice O’Connor, one of two swing voters in the court, is more than happy to intervene, override, and instruct almost any party before her. Justice Kennedy is also prepared to be bold when it suits him. The result? All you need is one bloc or another willing to stick it to Congress, to the states, to city police practices, and the swingers are willing to play ball.
Pundits have made great hay this week of the fact that an unprecedented number—26 of 81—of this term’s cases were 5-4 decisions and the extent to which all power lies at the center. This is a court of three conservatives, four moderate-liberals, and two “swing” moderate-conservatives who usually tip the balance in one direction or another. Thus, Kennedy might join the four liberal judges to hold that legal services lawyers’ free speech rights were violated by congressional restrictions barring them from challenging welfare laws (in Legal Services Corporation v. Velazquez). And (in Easley v. Cromartie) O’Connor might join the liberal bloc to uphold a madly gerrymandered voting district, allowing race to be a “factor” in drawing legislative districts. It’s still called “activism,” by the way, even when a conservative does it.
So, why is this court still considered a model of “judicial restraint”? Because, like the woman on the diet, it keeps insisting that it’s slimming down. In public, it struts and frets about the “balance of powers” and federalism and its role in the big picture. But look at what happened in Florida. It was the All You Can Eat Breakfast Buffet at the Bellagio down there. States’ rights went the way of the shrimp platter, and federalism was the bowl of guacamole, and congressional authority got tossed in O’Connor’s purse for later. Checks and balances and judicial restraint? That was the decorative pineapple in the middle of the buffet table.
Because the court and country are so badly polarized right now, we have distracted ourselves from the insatiable hunger of the court by pointing fingers at one another’s judges and labeling them “activists.” If it is true that the moderates on the court are snapping the radical ends around with greater force than we realize, the court is not delicately balanced, as we’ve been pretending. In fact, it’s supercharged, from both ends, without a unifying theory or vision.
Will it be better when George W. Bush puts another Scalia and another Thomas on the court, as he’s promised to do? It will certainly not be “balanced” then, either. But at least it won’t be weirdly schizophrenic. Or terrifyingly, blindly hungry.