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.