Activism in the U.S. Supreme Court

President Barack Obama’s pick of moderate Elena Kagan, current solicitor general, as his nominee to succeed Justice John Paul Stevens on the U.S. Supreme Court leaves both conservatives and liberals momentarily confused and less than satisfied.

President Obama said he would look for a candidate with qualities similar to those of Justice Stevens: “An independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.� He describes Elena Kagan as an intelligent, consensus-building pragmatist capable of reaching “understanding before disagreement.�

As a legal scholar, professor of law and dean of the Harvard Law School, Ms. Kagan clearly meets the basic qualifications for Supreme Court justice. At the same time, she has never been a judge or a litigator in the courts of law (many fine justices have not), and not much is known about her judicial philosophy.

Judicial philosophy is a short-hand euphemism for finding out where the candidate stands in the left-right political spectrum of today, and, if liberal, whether the candidate is prone to judicial activism, that is, a propensity to create new law without waiting for the Legislature to do so.

When Sonia Sotomayor faced the music of Senate confirmation hearings in the summer of 2009, she was virtually forced by her inquisitors to affirm what every first-year law student knows to be untrue, namely that “judges do not make the law; they only interpret it.� Conservative senators will demand to know where the nominee stands on “judicial activism.� The question is deliberately misleading.

The conservative objection to judicial activism is intended to deter further liberal or progressive court decisions, such as Brown v. Board of Education (1954), which put an end to racial segregation in schools, or Roe v. Wade (1973), which affirmed a woman’s right to choose, thus limiting the power of government to intrude on her privacy. Yes, these cases were truly activist in the sense that they both created new law that never existed before.

The outcomes of these cases were liberal and progressive in the sense that they sided with the less powerful — blacks and women — against the powers that be: racist and fundamentalist authorities who wanted things to remain the way they were.

It is nonsense to claim that the Supreme Court is not, or should not be, activist. Indeed, today’s Supreme Court majority (Roberts, Alito, Scalia, Thomas and often Kennedy) is the most activist as well as conservative or neoconservative judicial wing in living memory. They vote again and again, 5 to 4, against the more liberal minority (Stevens, Breyer, Ginsburg and Sotomayor).

The latest example of this judicial activism is Citizens United v. FEC (2010) which held that government could not limit corporations’ political spending for or against candidates in elections. This decision was activist in the sense that it created new law. More than that, it overturned more than a century of judicial precedent to the contrary, as well as legislation such as McCain-Feingold. The majority ruling was conservative in the sense that it sided with the wealthy and powerful corporations against ordinary American citizens. (See “Voting rights, free speech and corporate personhood,� The Lakeville Journal, April 8, 2010.)

Looking through the inevitable smokescreen of political debate, we can put aside the misleading, and frankly false, issue of judicial activism, and focus on the practical question facing the president in this case. Can Obama obtain bipartisan consensus even on a moderate candidate, or is he doomed to a conservative filibuster no matter whom he nominates? The recent experience with health-care reform and Wall Street regulation does not bode well for a judicious outcome. Democrats and Republicans are fully aware that Supreme Court appointments are for life, and long out-live presidential administrations. The stakes are high, and the consequences are long-term.

In the event that confirmation of Elena Kagan is totally stymied in the Senate, then Obama could take a page from George W. Bush’s playbook and make an interim appointment while the Senate is in recess, relying on the Constitution’s Article II, Section 2 (3) which states that: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.� There’s plenty of precedent for doing exactly that. Let’s hope it doesn’t come to it.

Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.