It has been a rough several days. I have watched every Presidential general election debate since 1980 and last week’s debate was by far the worst. Former President Trump engaged in a lying fest and President Biden was incapable. The end of the Supreme Court term was similarly dispiriting as the most notable decisions consisted of resounding defeats or narrow procedural “victories.”
My silver lining has been reading “Vision,” the autobiography of David Tatel, a recently retired judge of the United States Court of Appeals for the D.C. Circuit. The book covers his personal and professional life. Part of Judge Tatel’s professional history is his background as a civil rights lawyer. We share a Lawyers’ Committee history – he was the founding Director of the Chicago Lawyers’ Committee and then became the Director of the National Lawyers’ Committee.
Last week I went to an event for the book sponsored by the Washington Lawyers’ Committee and National Lawyers’ Committee. I bought a copy of the book right before the event started. Within minutes, I devoured Chapter 18, The Future of Democracy, because it covered the two cases he says were the most important of his career that also happen to be two of the most important of my career, Northwest Austin Utility District No. 1 v. Musakey and Shelby County v. Holder. Both cases involved the constitutionality of the preclearance provisions of the Voting Rights Act. Shelby County was a bitter and devastating defeat for Judge Tatel, me, and millions of others as the Supreme Court reversed Judge Tatel’s opinion and held that the coverage formula used for the preclearance provision was unconstitutional. Judge Tatel and I have never discussed these cases and I was interested in what he had to say.
In the days since, I have read the rest of the book and I highly recommend it. It is extremely well-written. Though many of the discussed concepts are complex, it reads easily. The book is inspirational as Judge Tatel explains how it has taken decades for him to accept his blindness while also explaining how he and those around him have managed it. Judge Tatel discusses his success but recognizes his shortcomings, and he serves as a model of somebody who has continued to grow through experience and reflection.
But the reason I am discussing his book here is Judge Tatel’s discussion on judicial philosophy. He says that his judicial philosophy was judicial restraint. He states that the current Supreme Court has abandoned judicial restraint in several cases and suggests that the Court is engaging in its opposite, judicial activism, though I do not think he uses the term. I did not know his judicial philosophy was judicial restraint and I have been thinking a lot recently about conservative judicial activism.
What do the terms “judicial restraint” and “judicial activism” mean? In his book, Judge Tatel identifies the following as traits of judicial restraint for appellate judges:
· Drafting narrow opinions and ruling no more broadly than is necessary to decide the case
· Deferring to the judgments of elected officials, fact-finding in the district court, and the opinions of subject-matter experts
· Faithfulness to the text of the Constitution or statutes
· Faithfulness to precedent
Judicial activism would be the opposite of these principles.
For decades, many conservatives railed against judicial activism and claimed that conservative judges practiced judicial restraint while liberal judges were judicial activists. This largely was a reaction to the Supreme Court during the tenure of Chief Justice Earl Warren (1953-1969), which was an activist court. I would say the Warren Court was right to be activist. The Supreme Court needed to abandon “separate but equal.” It needed to adopt a one person, one vote principle. It needed to find that criminal defendants had a right to counsel. And you can go on and on.
The emphasis on judicial restraint rose to a new level after the failed Supreme Court nomination Robert Bork, who essentially acknowledged his conservative beliefs, and whose nomination failed over those views. Judicial nominees went out of their way to become noncontroversial and to proclaim themselves as adherents of judicial restraint. Chief Justice Roberts executed a command performance in his 2005 nomination hearings as he likened himself to a baseball umpire who was there only to call balls and strikes. Democratic nominees in the Clinton/Obama Presidencies were even more restrained. Most nominees, even in the lower courts, were prosecutors or law firm attorneys (Judge Tatel was an exception) because their views would be considered activist. Justice Kagan, who had spent most of her career in academia, seemingly went out of her way to never publicly express a view in her career regarding a controversial issue that might become before the Court.
This changed during the Trump years. Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were nominated in part because they had put themselves out there as conservative ideologues who had written provocative opinions or articles. You can see which conservative federal appellate judges are aiming for Supreme Court nomination because they seem to go out of their way to call attention to their conservative views.
I was curious about what the Federalist Society has to say now about judicial restraint. According to this 2023 article from Politico, the Federalist Society is no longer so tethered to judicial restraint. The article quotes Eugene Meyer, the president CEO of the Federalist Society, as saying
I think it would be fair to say there’s been some movement over time more in the direction of interpreting the Constitution and less in the direction of pure judicial restraint.
In the same article, Josh Blackmun, a law professor and frequent participant at Federalist Society conferences, goes even further:
The norm that judges be restrained and moderate — that ship has sailed.
A piece of good news in this. The Biden Administration has been more open than the previous two Democratic administrations in nominating to the bench lawyers who had backgrounds in civil rights or other progressive organizations or as public defenders. I would not be surprised if President Biden has nominated more of these judges in less than four years as Presidents Clinton and Obama did in sixteen. Several lawyers who I have worked with up until a couple of years ago are now federal judges. And the federal courts need that experience. A good recent example last week’s concurring and dissenting opinion of 11th Circuit Judge Nancy Abudu in Greater Birmingham Ministries v. Secretary of State for the State of Alabama. The case was brought under the National Voter Registration Act and Judge Abudu’s legal and practical experience enforcing the NVRA and other voting rights laws at the ACLU and the Southern Poverty Law Center comes through in her opinion.
One side point before I move on. Supreme Court eras are defined by the name of the Chief Justice. In some cases, the Chief Justice is the defining figure of the Court. I would point to Chief Justice Warren and Chief Justice John Marshall (1801-35) as examples. Since Chief Justice Warren, judges other than the Chief have been the dominant key figures on the Court.
I have this working hypothesis that for the more than fifty years in between Chief Justice Warren leaving the Court in 1969 and Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsberg in late 2020, the Court has largely followed the lead of the Court under Chief Justice Warren’s successor Chief Justice Warren Burger (1969-1986). Under Chief Justice Burger, the Court moved to the right, but not the far right. The direction was a mixed bag for progressives and conservatives alike though worse for progressives. A few examples in both directions. The Court’s decision in Milliken v. Bradley cut off school desegregation at the knees by all-but-ending interdistrict school desegregation remedies (Judge Tatel discusses an exception in his book) and its adoption of abstention in Younger v. Harris cut off federal court as a venues to consider race in admissions in Regents of the University of California v. Bakke. The Court stayed right-center (or center-right if you prefer) throughout the entire tenure of Chief Justice William Rehnquist (1986-2005) and for much of Chief Justice John Roberts’ tenure (2005-).
The key figures of the Court during this half-century were the right-center justices like Louis Powell (1972-1987), Sandra Day O’Connor (1981-2005), and Anthony Kennedy (1988-2008) because they often cast the deciding votes in the most important, most divided cases.1 After Justice O’Connor retired and Chief Justice Rehnquist died in 2005 and they were replaced by Justice Alito and Chief Justice Roberts, Justice Kennedy was the dominant figure for the next thirteen years until he retired. If you read Supreme Court briefs from this era, many of them were geared toward Justice Kennedy’s vote. These briefs are replete with quotes and citations to majority, concurring, and dissenting opinions from Justice Kennedy. When the Court would go “activist” and deviate from precedent it was because Justice Kennedy was prepared to go there. Justice Kennedy believed in states’ rights but he also believed in individual rights (particularly First and Second Amendment) and he was offended when people were treated differently because they fell into a particular group. Because of this to treating people differently based on status, he was willing to find a right to marriage equality in United States v Windsor. I knew we were in trouble in Shelby County because we had both of Justice Kennedy’s inclinations going against us: Voting Rights Act preclearance infringed on states’ rights and Section 5 preclearance only protected voters of color. Though Justice Kennedy sometimes voted to overturn precedent, he was cautious more often than not. This cautiousness likely extended the life of Roe and Bakke.
With President Trump replacing Justice Kennedy by a more conservative version of Kennedy in Justice Brett Kavanaugh and replacing liberal Justice Ruth Bader Ginsberg with Amy Coney Barrett, the Court has moved from a right-center Court to a firmly right-wing Court. On the most contentious issues, typically there are three left-of-center Justices (Sonia Sotomayor, Kagan, and Kentanji Brown Jackson), three extremely right-wing Justices (Clarence Thomas, Alito, and Gorsuch) and three right-wing Justices (Roberts, Kavanaugh, and Barrett). On the close cases, the winning side almost always has at least two of the three of the latter group of Justices. Justices Kavanaugh and Barrett are not only more conservative than Justice Kennedy but are less likely to respect precedent. Chief Justice Roberts seems to care about the Court as an institution so in some cases he may respect precedent. But if he cares strongly enough about the issue, he will abandon precedent.
As a result, in the first three full terms since Justice Barrett joined the Court, we have the most activist Court since at least the Warren years. But unlike the liberal activist Court of the Warren years, this Court is a conservative activist Court. Though I could discuss numerous examples, I will briefly discuss a case from each term that overruled or de facto overruled a case from the Burger Court. In June 2022, the Court overruled Roe v. Wade in Dobbs v. Jackson Women’s Health and held there was no federal constitutional right to an abortion. Last June, in SFFA v. Harvard, the Court effectively overruled Bakke by all but eliminating the ability of universities to consider race in admissions. Last week, in Loper Bright Enterprises v. Raimondo, the Court overruled the Burger Court’s 1984 decision in Chevron v. National Resources Defense Counsel and held that courts should not defer to a federal agency’s interpretation of a Congressional law that the agency implements when the law is ambiguous regarding the issue at hand. Each one of these decisions is monumental and detrimental as are several more. Unfortunately, the last three terms are probably only the beginning of what the activist Roberts Court will do.
It is disconcerting to think that Justice Powell, who wrote the “Powell memorandum” less than three months before he was nominated to the Supreme Court, is moderate compared to six of the current Supreme Court justices. Reading the memorandum, you can see several of the strands that have come to characterize the conservative movement in the decades since.
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