The May 30, 2009, New York Times contains two interesting articles about Sonia Sotomayor. One deals with her views of affirmative action, the other with her views of campaign finance regulation. According to these articles, Judge Sotomayor has been supportive of both policies. What this means in terms of her predicted behavior as a Justice of the Supreme Court is that she will tend to uphold the constitutionality of both policies. The articles report that conservative critics of Judge Sotomayor have begun to attack her for her positions on these issues because, by doing so, she is allegedly making inappropriate policy judgments rather than applying the law in a cautious and respectful manner.
This criticism reveals the inconsistency and, dare I say, hypocrisy of the contemporary conservative stance on constitutional interpretation. Conservatives insist that their heroes - Justices Rehnquist, Roberts, Scalia, Thomas and Alito - are judicial "passivists," rather than judicial "activists," who "strictly construe the Constitution," do not substitute their own views for those of the Framers, and generally defer to the judgments of the democratically-elected branches of the government. Most fundamentally, these conservative Justices do not use the power of judicial review (the power to declare laws unconstitutional) to smuggle their own policy preferences into their interpretations of the Constitution. That vice, they say, is the vice of liberal activists.
Now, let us consider the debate about affirmative action and campaign finance regulation. What does it mean to say that Judge Sotomayor is "supportive" of affirmative action and campaign finance regulation? It does not mean that Judge Sotomayor would use the power of judicial review to require affirmative action or campaign finance regulation. That is not the issue. What it does mean is that she would be inclined to uphold the power of the democratically-elected branches of government to adopt those policies if they choose to do so. This is not judicial activism, but judicial passivism. It is not free-wheeling interpretation to impose her own views on the nation, but strict construction of the Constitution that takes a modest rather than an aggressive view of judicial power. It is precisely the judicial methodology that conservatives say they admire.
What the conservatives commentators really want in a Justice with respect to these issues is not judicial passivism but judicial activism. What they want is not strict construction, but free-wheeling, activist interpretation. What they want is a Justice who will hold unconstitutional programs of affirmative action and campaign finance regulation, which is exactly what they've gotten from Justices Rehnquist, Roberts, Scalia, Thomas and Alito. What they want is conservative activism - the aggressive use of judicial power in order to smuggle conservative political views into the interpretation of the Constitution.
Consider affirmative action. The Equal Protection Clause of the Fourteenth Amendment provides that "No State shall deny to any person the equal protection of the laws." What does this mean? It does not mean that all persons must be treated alike in all circumstances. That would be absurd. For example, citizens can vote, aliens cannot; eighteen-year-olds can drive, fourteen-year-olds cannot; lawyers can practice law, doctors cannot; and so on. What is clear from the history of the adoption of the Equal Protection Clause, which was enacted shortly after the Civil War, is that its Framers intended it primarily to protect African-Americans from continued oppression.
But the Equal Protection Clause doesn't expressly apply only to African-Americans. So the inevitable question is: Who else does it protect? Over the years, the Supreme Court has held that the Equal Protection Clause also protects other groups who have been historically discriminated against, such as women, illegitimate children, and ethnic minorities. The key question in the affirmative action debate is whether laws designed to benefit racial and ethnic minorities and women are unconstitutional because they disadvantage whites and men. Put differently, are whites and men like blacks and women for purposes of the Equal Protection Clause?
The passivist, strict constructionist, originalist answer must be: No. If states want to engage in affirmative action, such programs do not violate the central meaning of the Equal Protection Clause, and they do not violate the intent of its Framers, who never envisioned affirmative action. Nonetheless, Justices Rehnquist, Roberts, Scalia, Thomas and Alito have consistently held affirmative action unconstitutional. Whatever else one might say about those judgments, they do not reflect what are supposed to be "conservative" principles of constitutional interpretation. They represent conservative judicial activism, plain and simple.
Similarly, on the issue of campaign finance regulation, the First Amendment provides that "Congress shall make no law abridging the freedom of speech." Campaign finance legislation limits the amount that wealthy individuals and corporations can spend in order to influence the political process. The goal is to reduce the corrupting influence of money on political candidates and officeholders and to create a greater sense of "one person, one voice" in the political process. Think of a presidential debate in which time was not allocated equally, but was sold in ten-minute segments to the highest bidder.
Does a regulation that limits the amount individuals and corporations can spend in the political process violate the First Amendment? The passivist, originalist, strict constructionist view must be: No. But Justices Rehnquist, Roberts, Scalia, Thomas and Alito consistently say: Yes. Protecting the interests of wealthy individuals and corporations, they invariably hold that such regulations violate the freedom of speech. Whatever else one might say about those judgments, they do not reflect what are supposed to be "conservative" principles of constitutional interpretation. They represent conservative judicial activism, plain and simple.
I don't mean here to say that affirmative action and campaign finance regulation should be constitutional or unconstitutional. (My own view is that the former generally is constitutional while the latter generally is not.) My point, rather, is that the conservative commentators and critics have to be held accountable for their inconsistency and cynicism. If they truly believe in conservative judicial principles, then they should be delighted with Judge Sotomayor's apparent views on affirmative action and campaign finance regulation, for those views reflect precisely the interpretative principles the conservatives say they admire. And, at the same time, they should be furious with Justices Rehnquist, Roberts, Scalia, Thomas and Alito for departing from those principles in order to impose conservative political values on the nation in the guise of constitutional interpretation.
NEVER
He talked about how he couldn't help but think of his immigrant ancestors when dealing with certain matters before him. I think it was Alito, though I wouldn't bet my life on it.
Double Standards at Work. . . hmmmmm?
I disagree with your statement. The supreme court is supposed to decide if the laws passed by democratically-elected branches of our govt are constitutional. The big case is the firefighters of New haven Conn. On a firefighter promotion test, no blacks passed the test, the city, in hindsight, decided the test must be biased. No consideration given as to if the city invalidated the test because of possible lawsuits by NAACP and the ACLU. Did they have the money to fight. Would the US given the city a grant to fight the lawsuit. If the city decided to fight a lawsuit would the city be seen as fighting for justice and the best firefighter or biased against blacks. Opportunity should be equal. Not changed because someone fails the test. Now if some points out questions on this test for promotion had answers that only white males would know than that would be different. Judge Sotomayor decided the test was biased.
There is so much wrong with this article that I barely knew where to start but anyway the above will do for now. The arrogant assumption here is that those who wrote the constitution shared the ubiquitous victim mentality (with all it's inverse racism and bigotry!) and assumptions of today's radically feminised democrats. Has it not occurred to you that an INDIVIDUAL is not a 'class' nor is an individual responsible for the projected 'crimes' alleged against his or her class. Furthermore the 'pursuit of happiness' is an INDIVIDUAL pursuit - there are practically endless clues that the constitution was not written to put group identity before human rights butn that each human no matter their colour or creed etc is worthy of equal protection.
Okay, try this: "Put differently, are blacks and women like whites and men for purposes of the Equal Protection Clause?" Hmmm. I guess his answer to that would be Yes.
Equal is equal. And the Equal Protection Clause today tells us that people who were slaves one day ago should today have equal protection under the law. That's the strict and correct construction of that portion of the amendment. And the expansion of application to other groups is a recent (last 50 years) manifestation.
Also, thanks to the Fourteenth Amendment, people can no longer be insulted by their slave owners insisting that they be counted as one full person for purposes of determining representation for their states.
Knowing this, when Obama picked her, she had to be clean as new fallen snow. But a lack of dirt in a person's background has never stopped the corrupt pols in DC or over at FOX News; they just make up something juicy. That is something they are really good at!
Does affirmative action still apply to everything? Sould the lower performers be in charge?
If thats the case, we'll soon be trillions in debt and owned by China
I realize that you are just parroting what talk radio has told you to think, but you are wrong in your depiction of the case.
Facts, kid, they matter.
Affirmative action is giving a special advantage to one group over another so by definition it violates the equal protection clause. Therefore, knocking down affirmative action laws as unconstitutional IS strict construction.
On your 2nd point, remember that, as you quoted in your article the constitution says, "Congress shall make no law abridging the freedom of speech." So how is the court not allowing congress to make such a law anything but strict construction?
this case was not actually about afirmative action per se, it was about wether or not the firemen's rights had been violated. they had not because the government agency that adopted the affirmative action plan was bound by it. the city/state/org is free to adopt another plan or dismiss the plan all together, but they would also have to be ready for the legal challenges and there just isn't enough money to take on too many battles at once.
like I said, there's more to this than a sound bite and it is not a good case for determining sotomayor's position on affirmative action.
If the SC reverses the ruling in the New Haven firemen's case, it will simply illustrate Prof. Stone's point about conservative "activist" justices on the SC, since the appellate court decision was entirely consistent with the governing case law.
And, yes, it is out of line to ask "how she feels" about issues that have not yet reached the SC but are likely to do so during her tenure since cases must be decided on their facts, not hypotheticals, as Alito and Roberts repeatedly said during their confirmation hearings.
In the absence of a single example to illustrate your last sentence, it is impossible to reply.