The wrong kind of judicial activism

You can agree with Clark Neily of the Institute for Justice that a certain amount of judicial activism — judicial engagement is his preferred term — is merited when judges face unconstitutional laws or executive actions. And you can agree that the federal government had to play an active role in the 1950s and 1960s to end the nation’s legacy of (government-endorsed and -protected) racial discrimination.

Still, it’s hard for an advocate of limited, constitutional government to offer much praise for the following scenario recounted in the latest issue of The Atlantic.

In the winter of 1963, as the Civil Rights Act worked its way through Congress, Justice William Brennan decided to play for time. The Supreme Court had recently heard arguments in the appeal of 12 African American protesters arrested at a segregated Baltimore restaurant. The justices had caucused, and a conservative majority had voted to decide Bell v. Maryland by reiterating that the Fourteenth Amendment’s equal-protection clause did not apply to private businesses like restaurants and lunch counters—only to “state actors.” The Court had used this doctrine to limit the reach of the Fourteenth Amendment since 1883. Brennan—the Warren Court’s liberal deal maker and master strategist—knew that such a decision could destroy the civil-rights bill’s chances in Congress. After all, the bill’s key provision outlawed segregation in public accommodations. Taxing his opponents’ patience, he sought a delay in order to request the government’s views on the case. He all but winked and told the solicitor general not to hurry.

And then the conservatives on the Court lost their fifth vote. Justice Tom Clark changed his mind and circulated a draft opinion granting the appeal. In a revolutionary constitutional change, lunch counters and restaurants would suddenly be liable if they violated the equal-protection clause. But Brennan foresaw a new difficulty. By now it was June 1964, and a coalition of northern Democratic and Republican senators looked set to break a southern filibuster and pass a strong civil-rights bill. Would a favorable Supreme Court ruling actually give wavering senators an excuse to vote no? They might say there was no need for legislation because the Court had already solved the problem. So Brennan, ever nimble, engineered a tactical retreat by assembling a majority that avoided the merits of the case altogether. It was an alley-oop to the political branches. They grabbed the ball and dunked it. Ten days after the Court’s decision, Congress passed the Civil Rights Act and the president signed it into law.

Imagine the outcry if a Supreme Court justice played similar games in order to ensure the viability of a conservative policy prescription that appeared destined to fall short of the necessary votes for congressional approval.

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