[Congressional Record Volume 152, Number 93 (Monday, July 17, 2006)]
[Extensions of Remarks]
[Pages E1424-E1425]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           ``ACTIVISM FOR THE RIGHT, RESTRAINT FOR THE LEFT''

                                 ______
                                 

                           HON. BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                         Monday, July 17, 2006

  Mr. FRANK of Massachusetts. Mr. Speaker, one of the great 
intellectual inconsistencies of our time is the assertion by 
conservatives that they are opposed to ``judicial activism'' and wish 
to have important public policy questions left to elected officials. Of 
course that is true only in those cases where they agree with what the 
elected officials have done, and they have shown very little restraint 
when their ideology calls for judicial invalidation of public policy. 
Indeed, some of the greatest anger I have heard expressed toward 
judiciary recently by my conservative colleagues has been against the 
eminent domain decision, in which the justices are guilty in the eyes 
of my conservative colleagues of being insufficiently activist--that 
is, the court majority allowed the actions of elected State and local 
officials in Connecticut to stand. I agree that eminent domain has been 
abused, but so is intellectual integrity when people insist that the 
courts defer to elected bodies on the one hand, and then denounce the 
Supreme Court precisely for doing that in the Kelo case.
  Chief Justice Roberts to date appears to be very much in the mode of 
this one-sided condemnation of activism, as Adam Cohen cogently points 
out in the July 10 column in the New York Times--given the importance 
of consistency in the application of judicial principles, I ask that 
Mr. Cohen's very thoughtful analysis of the Chief Justice's 
inconsistency be printed here.

              [From the Editorial Observer, July 10, 2006]

 What Chief Justice Roberts Forgot in His First Term: Judicial Modesty

                            (By Adam Cohen)

       At the confirmation hearings for John Roberts, there were 
     two theories about what kind of a chief justice he would be. 
     His critics maintained that he was an extreme conservative 
     whose politics would drive his legal rulings. Judge Roberts, 
     on the other hand, insisted that he was ``not an ideologue,'' 
     and that his judicial philosophy was to be ``modest,'' which 
     he defined as recognizing that judges should ``decide the 
     cases before them'' and not try to legislate or ``execute the 
     laws.''
       Judicial modesty is an intriguing idea, with appeal across 
     the political spectrum. For all the talk of liberal activist 
     judges, anyone who is paying attention knows that 
     conservative judges are every bit as activist as liberal 
     ones; they just act for different reasons. A truly modest 
     chief justice could be more deferential to the decisions of 
     the democratically elected branches of government, both 
     liberal and conservative, and perhaps even usher in a new, 
     post-ideological era on the court.
       That is not, however, how Chief Justice Roberts voted in 
     his first term. He was modest in some cases, certainly, but 
     generally

[[Page E1425]]

     ones in which criminal defendants, Democrats and other 
     parties conservatives dislike were asking for something. 
     When real estate developers, wealthy campaign contributors 
     and other powerful parties wanted help, he was more 
     inclined to support judicial action, even if it meant 
     trampling on Congress and the states.
       The term's major environmental ruling was a striking case 
     in point. A developer sued when the Army Corps of Engineers 
     denied him a permit to build on what it determined to be 
     protected wetlands. The corps is under the Defense 
     Department, ultimately part of an elected branch, and it was 
     interpreting the Clean Water Act, passed by the other elected 
     branch. Courts are supposed to give an enormous amount of 
     deference to agencies' interpretations of the statutes they 
     are charged with enforcing.
       But Chief Justice Roberts did not defer. He joined a 
     stridently anti-environmentalist opinion by Justice Antonin 
     Scalia that sided with the developer and mocked the corps's 
     interpretation of the law--an interpretation four justices 
     agreed with as ``beyond parody.'' The opinion also complained 
     that the corps's approach was too costly. Justice John Paul 
     Stevens dryly noted that whether benefits outweighed costs 
     was a policy question that ``should not be answered by 
     appointed judges.''
       In an opinion on assisted suicide, Chief Justice Roberts 
     was again a conservative activist. The case involved Attorney 
     General John Ashcroft's attempt to invoke an irrelevant 
     federal statute to block Oregon's assisted suicide law, which 
     the state's voters had adopted by referendum. Even though it 
     meant overruling the voters, intruding on state sovereignty 
     and mangling the words of a federal statute, Chief 
     Justice Roberts dissented to support Mr. Ashcroft's 
     position.
       Chief Justice Roberts voted against another democratically 
     enacted, progressive law when the court struck down Vermont's 
     strict limits on campaign contributions. He joined an opinion 
     that not only held that the law violated the First Amendment, 
     but also engaged in the kind of fine judicial line-drawing--
     in this case, about the precise dollar limits the 
     Constitution allows states to impose--that is often 
     considered a hallmark of judicial activism.
       One of the court's most nakedly activist undertakings in 
     recent years is the series of hoops it has forced Congress to 
     jump through when it passes laws that apply to the states. 
     Judge John Noonan Jr., a federal appeals court judge 
     appointed by President Ronald Reagan, has complained that the 
     justices have set themselves up as the overseers of Congress. 
     But Chief Justice Roberts voted to put up yet another hoop, 
     requiring Congress to put the states on ``clear notice''--
     whatever that means--before requiring them to pay for expert 
     witnesses in lawsuits involving special education. It is a 
     made-up rule that shows little respect for the people's 
     representatives.
       These cases make Chief Justice Roberts seem like a raging 
     judicial activist. But in cases where conservative actions 
     were being challenged, he was quite the opposite. When a 
     whistle-blower in the Los Angeles district attorney's office' 
     claimed he was demoted for speaking out, Chief Justice 
     Roberts could find no First Amendment injury. When Democrats 
     challenged Republicans' partisan gerrymandering of Texas's 
     Congressional districts, he could find no basis for 
     interceding.
       The Roberts court's first term was not radically 
     conservative, but only because Justice Anthony Kennedy, the 
     swing justice, steered it on a centrist path. If Chief 
     Justice Roberts--who voted with Justice Scalia a remarkable 
     88 percent of the time in nonunanimous cases--had commanded a 
     majority, it would have been an ideologically driven court 
     that was both highly conservative and just about as activist 
     as it needed to be to get the results it wanted.
       Chief Justice Roberts still probably views himself as 
     judicially modest, and in some ways he may be. He has been 
     reasonably respectful of precedent, notably when he provided 
     a fifth vote to uphold Buckley v. Valeo, a critically 
     important campaign finance decision that is under attack from 
     the right. He has also been inclined to decide cases 
     narrowly, rather than to issue sweeping judicial 
     pronouncements. But at his confirmation hearings, he defined 
     judicial modesty as not usurping the legislative and 
     executive roles.
       His approach to his new job is no doubt still evolving, 
     which could be a good thing. The respect for the elected 
     branches that he invoked while testifying before the Senate 
     Judiciary Committee is hardly a perfect judicial philosophy 
     especially today, when we need the court to resist the 
     president's dangerous view of his own power. Still, that 
     principled approach would do more for the court and the 
     nation than the predictable arch-conservatism the chief 
     justice's opinions have shown so far.

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