A Look into the Mind of Conservative Activist Jurists

© Josh Sager – April 2013


This is an excerpt from the oral arguments of the Shelby County v. Eric Holder case (the 2013 challenge to the Voting Rights Act):

“I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.”

“That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.”

“Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

–Supreme Court Justice Antonin Scalia—

This quote, when boiled down from its verbiage, basically means that Scalia thinks that the Voting Rights Act is so popular that no elected official would dare vote against it, and that this is a reason why the Supreme Court should step in and eliminate it; Senators, particularly in majority-minority districts, would be unable to justify their elimination of the VRA to their constituents (the VRA is massively popular) and would have to pay the price. As they cannot be voted out of office, Supreme Court Justices are able to eliminate even this extremely popular piece of legislation without any fallout from the American people.

The specific example that Scalia gives to illustrate the political impossibility of voting against the VRA is that of majority-black districts which elect a politician who wishes to discontinue the voting rights act. As there is no way that a politician who is elected by a majority-black district could avoid political fallout for voting against the law that has protected the voting rights of minorities for decades, Scalia argues that the courts should eliminate the law for the politicians.

Put plainly, the argument that a law should be called unconstitutional and struck down for the simple reason that it is so popular that no politician would dare vote against it, is absurd on its face. Scalia is bending over backwards to have justification when he votes to strike down the VRA, and this is just a reflection of that. When extended to other laws, this idea would cause the collapse of the social contract as it would result in the overturning of any law that people overwhelmingly support—for example, no politician would dare try to decriminalize rape or murder out of fear of political reprisal so, by Scalia’s logic, laws banning rape and murder should be considered unconstitutional by the courts (ironically, this type of reduction to the absurd argument is similar to the type of argument that Scalia loves to deride other people with).

Regardless of the eventual disposition of the Shelby County v. Eric Holder case, this commentary by Justice Scalia illustrates a very important and dangerous strain of thought held by many conservative jurists—these jurists see themselves as legislators in robes, unaccountable to any constituency and able to flaunt the public as well as legal precedent to push a partisan agenda.

Many modern conservative jurists on federal benches have come to see themselves not just as interpreters of the law, but also as virtually unaccountable legislators capable of striking down progressive policy from behind the safety of their robes. By acting as the hatchet-men to eliminate popular legislation, these federal judges can do what the conservatives in the legislature are unable to do due to massive backlash from their constituents.

As federal justices—including those on the Supreme Court—are appointed for life and cannot be removed except in extreme circumstances, they are the perfect partisan hatchet-men for partisan movements. If they can be convinced to disregard the ethics of their profession and engage in partisan judicial activism, these judges can be extremely effective in pushing a partisan agenda without having to consider the opinions of the country.

Despite what many people in the establishment will claim, the United States is a center-left country and the American people are not collectively receptive to the extreme-right agenda of the current conservative movement. Cutting regulations on dangerous/polluting businesses, taxes on the rich, entitlements, and social programs are not popular with the American people and are things that have contributed to the GOP’s current electoral problems. In addition to these programs, the conservative movement has engaged a full-on attack on voting rights in recent years, passing dozens of discriminatory ID laws while even attempting to destroy the voting rights act. As we have seen in the states that have passed discriminatory laws, the American public does not want voter discrimination and is not shy about consequencing politicians who try to enact such laws.

Many conservative justices on federal benches have decided to help their partisan allies in the legislature by insulating them from the consequences of their ideological goals. Rather than openly debating the Voting Rights Act in the legislature and getting together a block of conservative politicians to push for the repealing of the VRA, five conservative justices on the Supreme Court can simply declare it unconstitutional (despite the fact that it has been declared constitutional since its original passage decades ago) and remove it by fiat. While terribly undemocratic and a complete perversion of the ideal of the judiciary (the courts are meant to confirm/interpret the law, not make new laws or kill constitutional laws on partisan grounds), this method of destroying progressive legislation is incredibly effective.

In recent years, we have seen numerous examples of this strain of thinking in the conservative judiciary; here are a few examples:

  1. Corruption: In 2010, the conservative majority on the Supreme Court gave corporations the right to spend money in elections as thought they were individuals. This decision flew in the face of established law and led to a massive increase in corruption in American politics. If conservatives in the legislature had attempted to pass this redefinition of campaign law, they would have to explain to the public why they want corporate interests (including multi-national interests) to have the ability to subvert the will of the American people and corrupt the government—obviously, this wouldn’t have been popular.
  2. Appointments: The conservative DC Court of Appeals (3rd Circuit) struck down Obama’s recess appointments to the National Labor Relations Board, despite the fact that hundreds of similar appointments have been made and considered legitimate in modern years.
  3. Civil Rights: As I have previously explained, the conservatives on the Supreme Court are very likely going to strike down the Voting Rights Act on partisan grounds. Even Scalia points out that this would be unbelievably unpopular and would be political suicide.

If conservatives want to pass policy and believe that they are the majority of the country, then they shouldn’t fear passing legislation in the open—there is no need for them to hide behind the robes of their allies on federal benches if they truly are supporting things that the American people want. Unfortunately for conservatives, their ideas aren’t popular and they require the use of anti-democratic measures to pass their agenda without becoming toxic to the American electorate.


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