10/31/2007 08:06 pm ET | Updated May 25, 2011

Supreme Imbalance: Conservative Activism on the Supreme Court

In an earlier post ("Supreme Imbalance: Of Liberals and Conservatives"), I argued that there are four types of Justices: liberals, passivists, originalists, and conservative activists. In this piece, I will illustrate more clearly what I mean by "conservative activism."

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 Bush v. 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."

This is the third in a series of six posts on the make-up and direction of the Supreme Court.