[Congressional Record Volume 153, Number 112 (Friday, July 13, 2007)]
[Extensions of Remarks]
[Pages E1509-E1510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          JUDICIAL ACTIVISM: THE CONSERVATIVES' SECRET PASSION

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                           HON. BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                        Thursday, July 12, 2007

  Mr. FRANK of Massachusetts. Madam Speaker, in few areas of our public 
life is there a greater gap between what people say and

[[Page E1510]]

what they do than with regard to conservatives who decry ``judicial 
activism.'' It is a constant refrain from conservatives that judges 
should not be intervening in the policy process to impose their own 
particular views, and that it is especially egregious when appointed 
judges make fundamental decisions that ought to be left to elected 
officials. Their indignation is of course at its highest when decisions 
by some of those elected officials are in fact overturned by judges in 
the name of some judicial principle.
  As Adam Cohen shows in his very thoughtful essay in the New York 
Times for July 9th in fact, conservative judges--generally to the great 
applause of their co-ideologues--are far more energetic judicial 
activists in this sense than their liberal counterparts. Few examples 
of conservative indignation at the Supreme Court equal in volume the 
anger that came when a 5-4 majority of the court decided not to 
overrule the decision of elected officials in Connecticut regarding 
eminent domain. Conservatives vigorously objected to the Court's 
failure to intervene and cancel the decisions of these elected 
officials. ln the most recent Supreme Court term, the Court ended its 
work for the year by invalidating several important actions taken by 
elected officials--regarding school integration and campaign finance 
reform to name two of the most prominent. The Eleventh Amendment 
jurisdiction of the court under the conservatives' rule--a great 
expansion of the constitutional prohibition against suits against 
States--has been used repeatedly to knock out the application of 
congressional statutes that seek to prevent discrimination against 
vulnerable groups.
  As the internal headline on Mr. Cohen's piece says with regard to 
judicial activism, ``The conservatives forgot that they're opposed to 
it.'' It is important, Madam Speaker, for people to be honest about 
what they believe and not simply to misuse principle as a means of 
enacting substantive positions without having fully to defend them. I 
ask in the interests of informed debate on this question of who are the 
judicial activists that the article by Mr. Cohen be printed here.

                [From the New York Times, July 9, 2007]

       Last Term's Winner at the Supreme Court: Judicial Activism

                            (By Adam Cohen)

       The Supreme Court told Seattle and Louisville, and hundreds 
     more cities and counties, last month that they have to scrap 
     their integration programs. There is a word for judges who 
     invoke the Constitution to tell democratically elected 
     officials how to do their jobs: activist.
       President Bush, who created the court's conservative 
     majority when he appointed Chief Justice John Roberts and 
     Justice Samuel Alito, campaigned against activist judges, and 
     promised to nominate judges who would ``interpret the law, 
     not try to make law.'' Largely because of Chief Justice 
     Roberts and Justice Alito, the court has just completed one 
     of its most activist terms in years.
       The individuals and groups that have been railing against 
     judicial activism should be outraged. They are not, though, 
     because their criticism has always been of ``liberal activist 
     judges.'' Now we have conservative ones, who use their 
     judicial power on behalf of employers who mistreat their 
     workers, tobacco companies, and whites who do not want to be 
     made to go to school with blacks.
       The most basic charge against activist judges has always 
     been that they substitute their own views for those of the 
     elected branches. The court's conservative majority did just 
     that this term. It blithely overruled Congress, notably by 
     nullifying a key part of the McCain-Feingold campaign finance 
     law, a popular law designed to reduce the role of special-
     interest money in politics.
       It also overturned the policies of federal agencies, which 
     are supposed to be given special deference because of their 
     expertise. In a pay-discrimination case, the majority 
     interpreted the Civil Rights Act of 1964 in a bizarre way 
     that makes it extremely difficult for many victims of 
     discrimination to prevail. The majority did not care that the 
     Equal Employment Opportunity Commission has long interpreted 
     the law in just the opposite way.
       The court also eagerly overturned its own precedents. In an 
     antitrust case, it gave corporations more leeway to collude 
     and drive up prices by reversing 96-year-old case law. In its 
     ruling upholding the Partial-Birth Abortion Ban Act, it 
     almost completely reversed its decision from 2000 on a nearly 
     identical law.
       The school integration ruling was the most activist of all. 
     The campaign against ``activist judges'' dates back to the 
     civil rights era, when whites argued that federal judges had 
     no right to order the Jim Crow South to desegregate. These 
     critics insisted they were not against integration; they 
     simply opposed judges' telling elected officials what to do.
       This term, the court did precisely what those federal 
     judges did: it invoked the 14th Amendment to tell localities 
     how to assign students to schools. The Roberts Court's ruling 
     had an extra fillip of activism. The civil rights era judges 
     were on solid ground in saying that the 14th Amendment, which 
     was adopted after the Civil War to bring former slaves into 
     society, supported integration. Today's conservative majority 
     makes the much less obvious argument that the 14th Amendment 
     protects society from integration.
       With few exceptions, the court's activism was in service of 
     a conservative ideology. The justices invoked the due process 
     clause in a novel way to overturn a jury's award of $79.5 
     million in punitive damages against Philip Morris, which for 
     decades misrepresented the harm of smoking. It is hard to 
     imagine that Chief Justice Roberts and Justice Alito, who 
     were in the majority, would have supported this sort of 
     ``judge-made law'' as readily if the beneficiary were not a 
     corporation.
       The conservative activism that is taking hold is troubling 
     in two ways. First, it is likely to make America a much 
     harsher place. Companies like Philip Morris will be more 
     likely to injure consumers if they know the due process 
     clause will save them. Employers will be freer to mistreat 
     workers like Lilly Ledbetter, who was for years paid less 
     than her male colleagues, if they know that any lawsuit she 
     files is likely to be thrown out on a technicality.
       We have seen this before. In the early 1900s, the court 
     routinely struck down worker protections, including minimum 
     wage and maximum hours laws, and Congressional laws against 
     child labor. That period, known as the Lochner era--after a 
     1905 ruling that a New York maximum hours law violated the 
     employer's due process rights--is considered one of the 
     court's darkest.
       We are not in a new Lochner era, but traces of one are 
     emerging. This court is already the most pro-business one in 
     years, and one or two more conservative appointments could 
     take it to a new level. Janice Rogers Brown, a federal 
     appeals court judge who is often mentioned as a future 
     Supreme Court nominee, has expressly called for a return to 
     the Lochner era.
       The other disturbing aspect of the new conservative 
     judicial activism is its dishonesty. The conservative 
     justices claim to support ``judicial modesty,'' but reviews 
     of the court's rulings over the last few years show that they 
     have actually voted more often to overturn laws passed by 
     Congress--the ultimate act of judicial activism--than has the 
     liberal bloc.
       It is time to admit that all judges are activists for their 
     vision of the law. Once that is done, the focus can shift to 
     where it should be: on whose vision is more faithful to the 
     Constitution, and better for the nation.

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