Grading Justices from a Conservative Viewpoint

Conservatives complain of judges who are "activist", and say they want "strict constructionists" on the court, justices who are willing to interpret the constitution as written. Consequently, I thought it would be interesting to examine the four major Supreme Court decisions so far in 2010 and see who the activists and the strict constructionists have been this year.

The first case was the campaign finance case, striking down Congress' ban on political advertising by corporations. The activists here were the conservatives; in fact, Justice Stevens in dissent specifically accused the majority of "political activism".

The second case was the cross on public land in California. The breakdown here was quite interesting. Scalia and Thomas felt the plaintiff had no standing to pursue the lawsuit, since he was not alleging any personal harm to himself. This would be the non-activist approach. The four liberals would have let the lower court order stand, requiring the removal of the cross. The middle opinion, which was the controlling one, was by Justice Kennedy, saying the case should be sent back to the lower court for a determination as to whether the proposed land transfer to private hands looked like a government endorsement of religion. Alito issued a concurring opinion stating his belief that the factual record was sufficiently developed that the court should have simply ruled the land transfer could proceed.

The there is the sex offender opinion just announced. Again, we have Scalia and Thomas with the strict constructionist position, holding that nothing in the Constitution gives the federal government the authority to run the sex offender civil commitment program it had instituted. Justice Breyer's majority opinion found the authority in the "necessary and proper" clause. Alito and Kennedy concurred in the result but did not like the sweeping language Breyer used.

Another just-announced decision is the fourth in a decade-long series of decisions on the cruel and unusual punishment clause. It found that life without possibility of parole for juveniles who have not committed murder is cruel and unusual. As is so often the case, Justice Kennedy was the swing vote and wrote the majority opinion in this 5-4 decision. He found it was cruel and unusual, with the four conservatives in the minority (although Roberts concurred in the result).

In grading the Justices on their activist element, a definition is in order. I think the definition conservatives use when they complain about it is that the will of the people is thwarted, i.e., valid laws passed by Congress or by a state legislature are not upheld. Being a strict constructionist is a different matter, as one often must strike down a law if one were seeking to uphold the Constitution.

Because the cases had as many as four different positions to be graded, I will give 0 for least activist, up to 3 for most activist. Breakdown is:

Thomas and Scalia -- 3, 0, 3, 0 = 6

4 liberals -- 0, 3, 1, 3 = 7

Kennedy -- 3, 2, 0, 3 = 8

Alito -- 3, 1, 0, 0 = 4

Roberts -- 3, 2, 1 , 2 = 8

The other criterion is the one of "strict constructionist". This is a term used more often in President Nixon's time than today, but we still see it around. After the activism of the Warren Court years, Nixon was adamant that the court contain more of what he called "strict constructionists", people who will interpret the constitution as written without reading into it things that aren't there. The grade card here, with 0 for strictest and 3 for least strict:

Thomas & Scalia -- 0, 0, 0, 0 = 0

4 liberals -- 3, 3, 3, 3 = 12

Kennedy -- 0, 2, 2, 3 = 7

Alito -- 0, 1, 2, 0 = 3

Roberts -- 0, 2, 3, 2 = 7

It is clear that the "strict constructionist" scorecard more accurately portrays what the conservatives are after than does the "activist" standard. The conservatives would achieve more authenticity for their viewpoint if they would avoid using the "activist" language, since conservatives are "activist" as often as liberals, and stick to the "strict constructionist" standard.

The contrast here between Thomas/Scalia and the liberals is striking. In every case they were at opposite ends of the strict constructionist ranking. Kennedy is a well-known middle-of-the-roader, so his middle ranking is not surprising. Roberts' middle ranking is perhaps more surprising. The 7-point difference between Roberts and Thomas/Scalia comes about from the last three cases. In the cross case, T/S held the plaintiff had no standing, which I rate as the strict constructionist position. The majority opinion found that the standing issue had already been settled earlier in the litigation, and the ruling granting standing was upheld on appeal and not appealed further to the Supreme Court, so it had become final. This might at first glance seem to cast the T/S position into disrepute, but one must remember that most of the argument in the briefs and at oral argument centered on the standing issue, so it's not like T/S was making this up. Apparently everyone else involved in the case thought it was a significant issue, and I tend to agree with the T/S position because the plaintiff testified that he was not personally offended by the Christian cross, he just didn't like seeing it on federal land. Hence no personal harm to him.

Roberts gets a 2 here because he joined in the majority opinion, which would have sent back the case for further action, thereby prolonging the agony for all concerned. Alito gets a 1, because he would have decided the case then and there on the record, which is the least interventionist position after T/S.

One can argue that the liberals here qualify as "strict constructionist", because they were strictly applying the prohibition against government "establishment of religion". However, their position was so beyond the pale that I rate it as a stretch of the constitution, not an application of it. This cross had been there since 1934 as a memorial to WWI war dead, not as a statement about religion. It was in a remote area of the Mojave Desert, out of the way and surely not a bother to anybody. Further, the land swap with the VFW took care of the matter of it being on public land. The liberals just had their heads up their asses on this one.

Another divergence among the conservatives was in the sex offender case. Here Roberts gets a 3 for joining in Breyer's majority opinion, which used sweeping language to seemingly give the OK for Congress to do anything it wants under the "necessary and proper" clause. Alito gets only a 2 because he rejected this sweeping language.

In the cruel and unusual case Roberts rejected the sweeping rule announced by the majority, but he concurred in the result because he felt the sentence was disproportionate to the crime in this particular case. Hence he gets a 2 here.

The issue mentioned above of "stretching" came clearly into focus in the cruel and unusual case. Thomas wrote a stinging dissent attacking the Court's role in determining what society's "evolving standards of decency" are. Thomas repeatedly drives home the point that when the federal government, the District of Columbia, and 37 states have such a law on the books, how in the world can it be said to be against society's current standards? Hard to argue with that logic.

Stevens wrote a concurring opinion for the sole purpose of getting into a pissing contest with Thomas. He writes: "Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time....While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."

This sets the stage for an honest evaluation of the strict constructionist approach. Certainly if I were a legislator, I would never support a law which precluded a juvenile offender from ever being granted parole, whether the offense was murder or otherwise. To do so would ignore the basic realities that first, a juvenile is different than an adult; and second, that there is the possibility of rehabilitation. The life expectancy for a 17-year-old in this day and age is into the 80's; to say that a juvenile offender at the age of 70, or 60, or 50, can never be considered to be fit for return to society is ludicrous.

But the constitutional issue is different, and this is what Thomas and the strict constructionists can rightly harp on. Stevens is right to say that our standards do evolve over time, but Thomas is also right in saying that the fact that 37 states, PLUS the federal govt., PLUS the D.C. have seen fit to enact such a law shows that the standards have *not* evolved to the extent that the majority feels they have.

The approach used by the majority is more suited for a law that a renegade state, say Arizona, has enacted and which has been rejected by all other jurisdictions. Then it can be said with a modicum of intellectual honesty that the law under review is contrary to existing standards of decency.