We are now several weeks into the Supreme Court’s 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconced, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

    In the media, we constantly read about how “closely divided” the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the “conservative” Justices – Scalia, Thomas, Roberts, and Alito; the “liberal” Justices – Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the “man in the middle.” The impression created by such accounts is that this is an “evenly balanced” Court. This is a fallacy, and a dangerous one at that. What do we mean by “balance”? Why don’t the many five-to-four decisions prove that this is a “well-balanced” Court?

    The Supreme Court has discretionary jurisdiction. It generally agrees to decide only the “hardest” cases. What are the “hardest” cases? Most often, they are the ones about which the Justices are divided. That, indeed, is largely what makes them “hard.” Thus, one can reasonably expect that the Supreme Court is most likely to hear those cases that will most sharply divide the Justices, because those are the cases about which the law is most uncertain. Even a Court consisting of nine Scalias or nine Ginsburgs would eventually wind up dividing five-to-four in the cases it agrees to decide, because it is the division within the Court itself that defines the cases that most demand the Court’s attention.

    The important question, then, is not whether the Court often divides five-to-four, but where on the constitutional spectrum the decisive Justice sits. Depending on the makeup of the Court, that Justice might split the difference between Scalia and Thomas, on the one end, or she might split the difference between Brennan and Douglas, on the other.

    Within any set of nine Justices, some will be relatively more “conservative” and some will be relatively more “liberal.” That they often divide five-to-four tells us nothing about “balance” and nothing about whether the Court as a whole is “liberal,” “conservative,” moderate, or whatever. It tells us only that the Justices often divide five-to-four, which tells us nothing about the Court as a whole.

    The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court – more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.

• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.

• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.

• The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O’Connor to Kennedy.

• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.

• If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

    In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

    Now, I know I have been tossing around the terms “conservative” and “liberal” as if they have clear, well-defined meanings, when of course they do not. So, I must clarify what I mean by these terms.

    When people think of a “liberal” Justice, they are usually thinking of Justices like Earl Warren, William Brennan, and Thurgood Marshall. What made these Justices “liberal”? To begin with, they shared a common vision of the purpose of judicial review. They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process. They believed that this responsibility was both contemplated and intended by the Framers of our Constitution as a fundamental check on the power of the elected braches of government, and they believed that courts can fulfill this responsibility only by actively interpreting the Constitution to ensure that democracy operates both properly and fairly.

    It was therefore a “liberal” approach to constitutional interpretation that produced such decisions as Brown v. Board of Education, forbidding racial segregation, Engel v. Vitale, prohibiting school prayer, Reynolds v. Sims, protecting the principle of “one person, one vote,” Gideon v. Wainwright, guaranteeing the right to counsel to those accused of crime, Goldberg v. Kelly, requiring a hearing before the termination of welfare benefits, and the Pentagon Papers case, forbidding the government to enjoin the publication of classified information about the Vietnam War. Each of these decisions, and many others besides, illustrates what most people mean by a “liberal” approach to judicial review.

    Defining a “conservative” Justice is more difficult. I would identify at least three different types of judicial conservatives. First, there is what we might call the “judicial passivist.” This type of “conservative,” typified by Felix Frankfurter and John Marshall Harlan, acts on the view that judicial review is an extraordinary exercise of undemocratic governmental authority, and that it should therefore be employed only when a law is clearly unconstitutional. At their best, such judicial passivists are principled, even-handed, and neutral in their reluctance to invoke the power of judicial review.

    The basic assumption of this type of “conservative” jurist is that democratically-enacted laws are presumptively constitutional and should be invalidated only when there is no doubt of their invalidity. To do otherwise, they believe, would be an illegitimate judicial usurpation of the legitimate authority of the majority to make whatever laws they see fit, subject only to clear and unequivocal constitutional limitations.

    When critics attacked the “liberal” Justices of the as “activist” in the 1950s and ‘60s, what they usually said they wanted were “passivist” Justices who would exercise “judicial restraint” and give the democratic branches of government the deference they deserve. I should note, by the way, that judicial passivists do not necessarily reach politically “conservative” results. On some issues, such as the constitutionality of affirmative action, campaign finance regulation, regulations of the market, and regulations of commercial advertising, principled passivists will reach results that are politically liberal. Thus, this approach is institutionally, but not necessarily politically, conservative.

    A second form of “conservative” Justice is the so-called “originalist.” Originalism is, in a sense, a variant of “passivism,” but it is not institutional passivism. That is, it is not based on the assumption that courts should err in favor of upholding laws. Rather, it is based on the assumption that courts should invalidate laws only when they are confident that the Framers affirmatively intended the particular practice at issue to be unconstitutional. Thus, in theory, originalists can be either activist or passivist, depending on their reading of the Framers’ intent in any specific situation.

    Justices Scalia and Thomas are the best examples of “originalist” conservatives. Unlike “liberal” Justices, they do not ask whether the law at issue infringes the underlying purpose of a particular constitutional provision; and unlike conservative passivists, they do not uphold every law that has a reasonable justification. Rather, they ask whether the Framers themselves affirmatively intended to prohibit the practice or policy in question.

    In theory, originalism can be “liberal” as well as “conservative” in its results, depending upon what the Justice thinks the Framers intended. Justice Scalia, for example, has taken what might be seen as conventionally “liberal” positions in cases involving such issues as flag burning, the Confrontation Clause, and habeas corpus, because of his understanding of the Framers’ intent. Most often, however, originalism, at least as it applied by its typically conservative adherents, leads to results that are conventionally conservative.

    The third form of “conservative” Justice is the “conservative activist.”  A conservative activist aggressively interprets the Constitution and invokes the power of judicial review to implement conservative political values. Justices McReynolds, Sutherland, and Peckham are good examples, as illustrated by their decisions during the early years of the twentieth century, when they broadly construed the so-called “freedom of contract” to invalidate all sorts of progressive legislation. In the modern era, I would describe Justices Rehnquist, Roberts, Alito, and sometimes Scalia, Thomas, and Kennedy, as “conservative activists.”

    Recent cases that illustrate “conservative activism” include decisions that aggressively interpret the First Amendment to invalidate restrictions on commercial advertising and campaign finance regulations,  aggressively interpret the Equal Protection Clause to invalidate affirmative action, aggressively interpret the takings clause to invalidate laws regulating property, and aggressively interpret the principle of federalism to invalidate federal laws dealing with such issues as domestic violence, handguns,  the environment, and age discrimination.

    In my view, “conservative activism” is the least principled and least justified of the four approaches I have identified. Unfortunately, it is also the prevalent form of constitutional interpretation on the Supreme Court today.  Because it is so important, I should illustrate just how strongly this approach has shaped the jurisprudence of some recent Justices.

    A good example is the approach adopted by Justices Rehnquist, Scalia, and Thomas with respect to the Equal Protection Clause. My interest in this particular example was triggered several years ago by the Court’s five-to-four decision in Bush v. Gore, in which the majority held that the recount process ordered by the Florida Supreme Court in the 2000 presidential election violated the Equal Protection Clause. The decision in Bush v. Gore rested upon a conventionally “liberal”-type interpretation of the Equal Protection Clause. What was surprising, at least to me, was not the constitutional principle, but that Justices Rehnquist, Scalia and Thomas endorsed it.

    No one familiar with the jurisprudence of Justices Rehnquist, Scalia and Thomas could possibly have imagined that they would vote on this basis to invalidate the Florida recount process in light of their own well-developed and oft-invoked approach to the Equal Protection Clause. In the decade leading up to Bush v. Gore, Justices Rehnquist, Scalia and Thomas cast 65 votes in non-unanimous Supreme Court decisions interpreting the Equal Protection Clause. Nineteen of those votes were cast in cases involving affirmative action, and I will return to them in a moment.

    Of the 46 votes that these Justices cast in cases not involving affirmative action, Rehnquist, Scalia and Thomas collectively cast only two votes to uphold a claimed violation of the Equal Protection Clause. Thus, these three Justices found a violation of Equal Protection only 4 percent of the time in non-affirmative action cases. For the sake of comparison, over this same period, and in these very same cases, the colleagues of Justices Rehnquist, Scalia and Thomas collectively voted 74 percent of the time to uphold the Equal Protection Clause claim. 74 percent versus 4 percent. Of course, those cases involved laws that disadvantaged African-Americans, women, gays, the disabled and the poor -- groups that are surely less deserving of concern under the Equal Protection Clause than the beneficiary of the Court's decision in Bushv. Gore.

    But this is not a fair characterization. After all, I have excluded from the above analysis the votes of Justices Rehnquist, Scalia and Thomas in affirmative action cases. In those cases, these three Justices consistently demonstrated the same spirit of bold and innovative interpretation of the Equal Protection Clause that they manifested in Bush v. Gore. Indeed, in the decade leading up to Bush v. Gore, these three Justices collectively cast 19 votes to invalidate various forms of affirmative action. This represents 100 percent of their votes in those cases -- a perfect record. (Their colleagues, by contrast, voted only 33 percent of the time to invalidate such programs.)

    What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather odd view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes -- to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.

My second illustration of “conservative activism” involves Justice Rehnquist and the First Amendment. Here is a straightforward analysis of Rehnquist’s record in cases involving the First Amendment's “freedom of speech, or of the press.” In his more than 30 years on the Supreme Court, Justice Rehnquist participated in 197 non-unanimous decisions involving these freedoms. In these cases, Rehnquist voted to support the First Amendment claim only 8 per cent of the time. In these same cases, the other Justices voted to uphold the First Amendment challenge 55 per cent of the time. Thus, in non-unanimous decisions, the other Justices were 6 times more likely than Justice Rehnquist to find a law in violation of “the freedom of speech, or of the press.”

There were only four areas in which Justice Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving commercial advertising, religious expression, campaign finance regulation, and the right of the Boy Scouts to exclude gays. Rehnquist was 2.6 times more likely to invalidate laws restricting commercial advertising than laws restricting political or artistic expression. He voted to invalidate campaign finance legislation 67 per cent of the time, and he voted to invalidate restrictions on religious expression 100 per cent of the time. Indeed, in non-unanimous decisions, Rehnquist was 14.7 times more likely to vote to invalidate a law restricting commercial advertising, campaign expenditures, or religious expression than one involving any other aspect of “the freedom of speech, or of the press.”

What all this leads me to conclude is that Justice Rehnquist’s record with respect to “the freedom of speech, or of the press” cannot be defended as principled, coherent, or neutral. His inclination to sustain First Amendment claims only when they involved commercial advertising, campaign expenditures, religious expression, or the exclusion of homosexuals belies any plausible theory of originalism, judicial restraint, or even-handed constitutional interpretation. When all is said and done, Justice Rehnquist's First Amendment belongs to corporations, wealthy political candidates, churches, and homophobes. This is what I mean by “conservative activism.”

Why Judicial Passivism, Originalism, and Conservative Activism are Misguided

Having identified three conservative approaches to constitutional interpretation –passivism, originalism, and conservative activism, I would like now to evaluate the relative wisdom of each.

Passivism – the approach that says courts should uphold all laws unless they are unconstitutional beyond a reasonable doubt – has the virtue of insulating courts from difficult constitutional issues and giving great deference to the decisions of the democratically-elected branches of government. Unfortunately, these are also its vices. Most fundamentally, this approach misapprehends the essential nature of our constitutional system and abdicates a central responsibility of the judiciary.

To understand why this is so, it is helpful to return to the original debate over the adoption of a Bill of Rights. Those who opposed a Bill of Rights argued, among other things, that a list of enumerated rights in the Constitution would serve little, if any, purpose, for in a self-governing society the majority could simply run roughshod over whatever rights are guaranteed in the Constitution. How would listing our rights restrain the people from violating them? Moreover, as skeptics about human nature, the Framers had little doubt that for reasons of self-interest, prejudice, panic, passion, and intolerance, the majority of the people would pay little attention to the rights of minorities.

James Madison, the most influential of the Framers, understood that the protection of rights in a self-governing society posed a novel question. Where traditional theory had focused on rights as necessary to protect the people against the King, Madison recognized that in a republic rights are necessary to protect one segment of the community – particularly minorities – against the self-interested demands and interests of the majority.

As wrote at the time, the real source of the problem “lies in the people themselves,” because they see democracy as a means to enforce their own private interests over and against both the public good and the rights of their fellow citizens. This led to pose the following question: “In a republican Government the majority . . . ultimately give the law. Wherever therefore an apparent interest or common passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority. . . .?”  “What use,” he asked Thomas Jefferson, “can a bill of rights serve in popular Governments?” Jefferson wrote back to , “Your thoughts on the subject” of a Bill of Rights fail to address one consideration “which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent . . . merits great confidence for their learning and integrity.”

On June 8, 1789, proposed a Bill of Rights to the House of Representatives. He acknowledged that some might think that such “paper barriers against the power of the community, are too weak to be worthy of attention,” but then, echoing Jefferson’s argument to him, Madison insisted that if these rights are “incorporated into the constitution, independent tribunals of justice will consider themselves . . . the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

The Framers’ “solution” to the seemingly insoluble dilemma of how to enforce individual liberties in a self-governing society against the “overbearing majorities” that control the legislative and executive branches of government was the third branch of government – the courts, which could serve as “an impenetrable bulwark” against majoritarian encroachments on the liberties of political, social, religious, and other minorities.

Alexander Hamilton penned an eloquent statement to this effect in Federalist 78. argued that constitutional limits could “be preserved in practice no other way than through the medium of the courts of justice.” The courts, he maintained, are “designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” The “independence of the judges,” added, is intended to enable them “to guard the constitution and the rights of individuals from the effects of those ill humours which . . . sometimes disseminate among the people themselves.” Judges, he insisted, the right and the responsibility to resist invasions of constitutional rights even if they are “instigated by the major voice of the community.”

The problem with “judicial passivism,” in other words, is that it abdicates judicial responsibility and subverts a fundamental part of the genius of the American constitutional system. By evading their duty to enforce the Constitution in a meaningful manner, judicial passivists betray a central feature of our constitutional system.

“Originalism” purports to respect the intent of the Framers. But it has gained no credibility over the past quarter-century, despite the earnest efforts of its proponents, in part because it does precisely the opposite. The central intellectual premise of conservative originalism is that courts should hold nothing unconstitutional that the Framers themselves did not intend to hold unconstitutional. But this conception of constitutional law misreads the intent of the Framers. It assumes that the Framers intended to limit the effect of the Constitution to only those outcomes that they themselves consciously expected and intended.

But in drafting the Constitution, the Framers were not enacting a series of specific and predetermined rules. “Congress shall make no law prohibiting the “free exercise” of religion or abridging “the freedom of speech,” No person shall “be deprived of life, liberty, or property, without due process of law,” and the prohibition of “cruel and unusual punishments,” were not designed as crabbed, narrow-minded ordinances like speed limits. Rather, they were intended to serve as open-ended aspirations that would gain meaning and vitality over time.

As men of the Enlightenment, the Framers conceived of rights as inherent in nature and “founded on the immutable maxims of reason and justice.” They understood them much as they understood the laws of science. That is, just as they knew that they did not know all there was to know about biology and physics, so too did they know that they did not know all there was to know about their rights. Just as reason, observation and experience would enable man to gain more insight into philosophy, science, and human nature, so too would they enable him to learn more over time about man’s inalienable rights, which would have to be distilled from “reason and justice.”

With this mindset, the notion that any particular moment’s conception of rights should be taken as exhaustive would have seemed patently wrong-headed to the Framers, just as it would have seemed wrong-headed to them for anyone to assume that their knowledge of the human body or of the universe should be taken as final and conclusive. Such a conception was antithetical to the very core of Enlightenment thought and to everything the Framers stood for.

They were not timid men. They were bold. They knew full well that the rights they had identified did not “exhaust the great treasury of human rights.” They knew full well that their understanding of these freedoms “marked out the minimum not the maximum boundaries” of man’s inalienable rights. The “preservation of liberty,” they knew, “would continue to be what it had been in the past, a bitter struggle with adversity,” which would demand constant vigilance both to protect the rights they had recognized and to be alert to the recognition of new rights yet to be discovered.

The crabbed, frightened originalism of Clarence Thomas and Antonin Scalia would have seemed absurd to the Framers. As a constitutional methodology, it not only invites manipulative and result-oriented history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution.

“Conservative activism” sounds like an oxymoron, and it should. But it is in fact the dominant form of jurisprudence on the Supreme Court today. As we have seen, it is conservative activism that explains the Court’s decisions invalidating regulations of commercial advertising, invalidating campaign finance regulations, invalidating affirmative action programs, invalidating the use of race to increase integration, invalidating zoning laws, invalidating laws prohibiting the Boy Scouts from discriminating against gays and lesbians, and invalidating federal laws dealing with the environment, handguns, domestic violence, and age discrimination.

Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities, not to protect the rights of minorities, or the powerless, or the oppressed, or the disenfranchised, or the dispossessed, or the poor, or the downtrodden, or the accused, but to protect the interests of whites, corporations, the wealthy, the privileged, and the powerful. Like the Lochner era of which it is the constitutional and moral descendent, modern-day conservative judicial activism is a perversion of the values that the Constitution is designed to protect and, more specifically, of the values the Constitution relies on the Court to protect.

Of “Constitutionalism”

This brings me to the fourth approach I have discussed, which has  variously been called “liberalism,” or “judicial activism,” or “not strict constructionism.” In my view, a better and more descriptive term would be “constitutionalism.” The central mission of this approach to constitutional interpretation is to embrace the responsibility the Framers imposed upon the judiciary to serve as a check against the inherent dangers of democratic majoritarianism and to maintain the vitality of fundamental individual liberties in a constantly changing world.

This is not an easy task. But nor is self-governance easy. Constitutionalism is not mechanical, it is not mindless, it is not value-free. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, and ever-changing social and cultural conditions. It requires restraint, humility, curiosity, wisdom, and intelligence. Perhaps above all, it requires intellectual honesty, courage, a recognition of the judiciary’s unique strengths and weaknesses, and a deep understanding of our nation’s most fundamental constitutional aspirations.

Let me use the Warren Court as an example. Is the a better or worse nation today because of the decisions in Brown v. Board of Education, prohibiting racial segregation in public schools, Engel v. Vitale, prohibiting school prayer, Goldberg v. Kelly, guaranteeing a hearing before the termination of welfare benefits, Reynolds v. Sims, guaranteeing “one person, one vote,” Mapp v. Ohio, guaranteeing meaning protection of the constitutional prohibition of “unreasonable searches and seizures,” Gideon v. Wainwright, guaranteeing all individuals the right to counsel in criminal cases, and New York Times v. Sullivan, protecting a robust freedom of the press?

That is a fair question. The proof, after all, is in the results. In my judgment, however controversial some or all of these decisions might have been, every one of them properly understood and implemented the values with which the Framers sought to imbue our Constitution. And however controversial those decisions might have been at the time, every one of them is today regarded as a beacon of what the stands for in the world. (I can say with absolute confidence that Justices Roberts, Alito, Scalia, and Thomas would have reached the opposite result in every one of these cases, had they been on the Court at the time.)

Speaking of counter-factuals, let me step off the cliff a bit further and tell you what issues I think a Court made up of justices committed to a theory of constitutionalism would today be deciding:

Not that affirmative action is unconstitutional, but that are there circumstances in which affirmative action is constitutionally required.

Not that cigarette companies have a constitutional right to shill their product to children, but that children have a constitutional right to an adequate education.

Not that the state can execute juveniles, but that individuals accused of crime have a constitutional right to DNA testing.

Not that the government can constitutionally ban partial birth abortions even when the ban endangers the lives of women, but that the government cannot constitutionally ban stem-cell research in order to enforce the faith-based beliefs of the religious right.

Not that billionaires have a constitutional right to spend millions of dollars to buy the elected representatives of their choice, but that public officials cannot use partisan gerrymandering to ensure their perpetuation in power. 

Not that the Boy Scouts have a constitutional right to discrimination against gays and lesbians, but that gays and lesbians have a constitutional right to marry.

Constitutional law is about precedent, and text, and history, and law. But it is also about values and vision. I ask you, what is your vision for the constitutional future of our nation?