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Politics, the Constitution and the Roberts Court

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When I was a law student at the University of Chicago in the late 1960s, I had the great privilege as having Philip Kurland as one of my constitutional law professors. Kurland was one of the most distinguished constitutional scholars of his generation. He was also, by the standards of the day, quite conservative, and often a sharp critic of the Warren Court.

In 1970, Kurland published a much-heralded book, Politics, the Constitution and the Warren Court, in which he laid out his critique of the Supreme Court's work under the leadership of Earl Warren. A former law clerk to Justice Felix Frankfurter, Kurland echoed many of Frankfurter's views about the need for judicial restraint.

Frankfurter himself came to be suspicious of judicial "activism" in the early years of the 20th century when a clique of conservative Supreme Court justices took an aggressively "activist" approach to constitutional interpretation in a campaign to declare unconstitutional a broad range of progressive legislation -- including, for example, laws guaranteeing a minimum wage, establishing maximum working hours, prohibiting child labor and regulating the working conditions for women. The lesson Frankfurter drew from this era was that Supreme Court justices should be cautious in interpreting the Constitution, lest they fall victim to the temptation to impose their own personal values on the nation in the guise of interpreting the Constitution.

Kurland applied this lesson to the Warren Court, which he regarded as insufficiently respectful of the majoritarian political process. He concluded that the justices of the Warren Court were often too quick to reach results that they themselves thought to be good for the nation, whether or not these results were mandated by a proper understanding of the Constitution.

In short, Kurland, like Frankfurter, insisted that the proper stance of the Supreme Court should be one of judicial restraint and that, in interpreting vague and often open-ended constitutional provisions, the justices should err on the side of deferring to the elected branches of government.

Having recently re-read Politics, the Constitution and the Warren Court, I couldn't help but wonder what my old mentor would have thought of the work of the Roberts Court. After all, the Roberts Court is dominated by "conservative" rather than "liberal" justices, so Kurland would be pleased, right?

Wrong. My rather confident guess is that traditional conservative constitutional scholar like Philip Kurland would be appalled by the conduct of the current Court -- and most especially by the work of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. This is so for two reasons.

First, for critics of the Warren Court like Kurland, the proper stance of Supreme Court justices ordinarily should be one of judicial restraint. But the Roberts-Scalia-Thomas-Alito wing of the current Court is anything but restrained. To the contrary, these modern-day "conservatives" are often extremely activist in their interpretations of the Constitution. They are not in any way "conservatives" in the Kurland-Frankfurter mold.

In recent years, for example, these self-styled "conservatives" have voted consistently to hold unconstitutional laws regulating guns, laws regulating corporate campaign expenditures, laws regulating the size of campaign contributions, programs designed to promote the racial integration of public schools, affirmative action programs, key provisions of the Voting Rights Act, and (except for Chief Justice Roberts -- on a technicality) the Affordable Care Act, to offer just a few illustrations.

Each of these decisions was the product of an aggressive form of judicial activism that Phil Kurland surely would have condemned. Each overturned the judgments of the democratic process without any clear and compelling justification in constitutional text, history, theory, or precedent. Kurland would have found these decisions just as unwarranted as Felix Frankfurter found the Court's decisions invalidating progressive era legislation a century before.

Second, and here's the real kicker, Kurland would have been even more appalled by the unwillingness of these justices to invalidate laws they should have held unconstitutional -- but didn't. This is so because Kurland's commitment to judicial restraint was not universal.

The one critical "exception" to the principle of judicial restraint, Kurland explained, is when "the legislature imposes on... minorities in so fundamental a fashion as to necessitate invoking the safeguards of the Constitution." Indeed, the Supreme Court's "most important function," Kurland added, is "to frustrate the will of the majority" when the majority runs roughshod over "interests that would otherwise be unrepresented in the government." Despite what he saw as the Warren Court's failings, Kurland praised the justices of the Warren Court for accepting their core responsibility to protect "minorities against the tyranny of majorities."

In performing its role as the "guardian of interests that would otherwise be unrepresented," the Warren Court was particularly activist in interpreting the Constitution to ensure that it protected the rights of African Americans, political dissenters, religious minorities, persons accused of crime, and the right to vote. Although Kurland did not approve of all of these decisions, he understood and endorsed the constitutional understanding that drove them.

The "conservative" justices on the Roberts Court, however, are often passionately restrained in their interpretation of the Constitution in precisely the cases in which a more muscular form of judicial review is most appropriate -- those involving discrimination against African Americans, women, Hispanics, religious dissenters, gays and lesbians, persons accused of crime, and denial of the right to vote to minorities and the poor. In these cases, our contemporary "conservative" justices often err on the side of upholding laws that even Philip Kurland would have found unconstitutional.

This is, in my view, a sad state of affairs. There was once a principled understanding of judicial conservatism. That understanding no longer exists. Our conservative justices no longer believe in judicial restraint, and they no longer believe in the responsibility of justices -- liberal and conservative alike -- to protect "minorities against the tyranny of majorities."

If Phil Kurland were here today to write a new volume, Politics, the Constitution, and the Roberts Court, it would be, I am quite certain, scathing -- and with good reason.