Two days after President Obama announced that Elena Kagan was his choice for the coming vacancy on the Supreme Court, her first round of obligatory getting-to-know-you sessions on Capitol Hill included a stop at the office of the Senate Judiciary Committee chairman, Patrick J. Leahy. After the photographers had recorded the moment, and the two had spent more than half an hour in private conversation, Leahy started the process of selling the nomination to the public. But as he spoke with reporters, he sounded more eager to talk about what he thinks is wrong with the current justices than about what he thinks is right with Kagan.

“We’ve seen how a narrow conservative majority on the nation’s highest court has ignored in many instances congressional intent and the court’s own precedent to overturn decades of law, to limit protections for workers of all ages, to curb access to court, to muffle Americans’ voices in their elections,” said the Vermont Democrat, who has participated in the Judiciary panel deliberations on all eight justices who will remain after John Paul Stevens departs this summer. Kagan, he said, would be a welcome counterweight to the court’s “activist conservative majority.”  

The phrase might seem an odd choice coming from such a prominent Democrat, given that the very word “activist” has long been employed as an epithet by Republicans critical of judges they view as too far to the left. But Leahy’s comment was a clear sign that Senate Democrats, liberal activists and legal scholars are using Kagan’s confirmation process as an opportunity to turn that conservative critique on its head as part of a broader campaign to reframe the debate over constitutional interpretation.

While most of the attention in the early days after Kagan’s nomination has focused on her record — a lack of judicial experience, limited work as solicitor general, and a relatively thin paper trail as Harvard Law dean and Clinton administration lawyer — her advocates and critics are both girding for a conflict over something more fundamental than one justice’s qualifications.

For almost half a century, conservatives have controlled the dominant narrative surrounding such nominations. They have successfully cast their picks as the proper defenders of the Constitution’s original meaning — and the liberals’ choices as activists inappropriately bent on shaping the law to meet their own policy preferences. Liberals, meanwhile, have struggled to offer an alternative to the simple and effective messaging of their opponents, such as the right’s oft-cited analogy that judges should be umpires calling them as they see them, not players who head to the field each day bound to win the game.

But recently, Democrats have seized on a series of decisions by the court’s conservative majority under Chief Justice John G. Roberts Jr. as evidence of a pro-business activist approach. The populist critique gained some significant momentum in January, when a 5-4 majority tossed decades of precedent overboard and gave corporations broad new power to spend on political campaigns. 

That decision prompted Obama to accuse the court of favoring “powerful interests” during his State of the Union address, while six justices sat in the audience. He revived the theme last week when he introduced Kagan to the nation. Her work arguing his position in the campaign finance case before the court, the president said, was evidence that “she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations.”

Still, Democrats face considerable challenges as they work to use the coming confirmation debate as a vehicle for both attacking the court’s conservative trends and for selling their alternative narrative about constitutional interpretation. It remains to be seen whether they have found the right message — or the right nominee — to help change the public’s view of the proper role of judges in our system of government. 

“The Democrats have a wedge, they have an issue; they’ll play it to their advantage in the forthcoming confirmation hearings, and events will determine if it fizzles or picks up steam,” says Barry Friedman, a New York University law professor and author of a book last year on how public opinion influences the Supreme Court.

The Meaning of Activism

Six decades after historian Arthur Schlesinger Jr. coined the phrase “judicial activism” in a 1947 Fortune magazine article, there is still no commonly agreed-upon definition of the term. It has been applied to decisions in which judges are said to ignore precedent, invalidate arguably constitutional actions of the executive and legislative branches or states, or apply their preferences rather than what the law requires.

What complaints about activism usually share is unease about judges exercising too much power, says Thomas Keck, a professor of law and politics at Syracuse University’s Maxwell School of Citizenship and Public Affairs. “It is used as an epithet against decisions people don’t like but reflects concerns that courts are pushing their own authority over and above the authority of other institutions of government,” he says.

Such concerns long predate Schlesinger’s article. In the 1930s, Democrats decried conservative justices for declaring several signature pieces of New Deal legislation unconstitutional — the decisions that prompted President Franklin D. Roosevelt’s unsuccessful bid to increase the number of justices to ensure a majority more to his liking. 

But by the 1960s, attacks on the court increasingly came from conservatives unhappy with rulings by Chief Justice Earl Warren and his liberal allies on a range of contentious social issues including civil rights, school prayer, criminals’ rights, obscenity and personal privacy. The Warren court’s decisions upending laws enacted by Congress or the states brought about rapid social change and often proved unpopular. They also provided a potent campaign issue for Republican presidential nominees, starting with Barry Goldwater in 1964, then Richard Nixon four years later. 

“There was a lot of tumult, and the court did seem to get in some instances pretty far ahead of where the public was,” says Richard W. Garnett, a law professor at the University of Notre Dame. “And so the activism charge could be leveled there and it could stick. It became the property of conservatives.”

The extent to which Republicans have come to own the activist label has been a source of consternation to liberal legal scholars who say conservative justices are just as apt to be activist.

In his 2004 book, “The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism,” Keck argued that Chief Justice William H. Rehnquist and several fellow conservatives displayed a particular penchant for striking down laws enacted by Congress from 1995 to 2002 on the grounds that they impinged on powers reserved for states. “The reality is that Republican judges strike down laws just as much as Democratic judges; they just strike down a different set of laws,” he says.

But to the frustration of the left, the label is affixed in the public’s mind mainly to judges appointed by Democrats. “Liberals are branded activists and conservatives are not,” says Luis Fuentes-Rohwer, a law professor at Indiana University. “It’s a triumph of the conservative movement. Once you frame the debate that way, the game is over.”

Constitutional Interpretations

Underlying the accusations of judicial activism is a more fundamental debate about the proper way to interpret the Constitution. And while conservatives long ago convinced the public that liberal judges were activists, it has taken them longer to develop and market their own vision of constitutional interpretation.

For decades, conservatives struggled to come up with a coherent alternative to the approach taken by the Warren court, which embraced a vision of a dynamic “living Constitution” interpreted according to society’s changing needs as a way to expand individual rights.

In the 1970s, conservative scholars began coalescing around the idea that judges should be constrained by the original intent of the Constitution’s authors. The idea began gaining wider traction in the 1980s thanks to the efforts of Attorney General Edwin Meese III, who engaged in an unusually public debate about constitutional interpretation with some of the liberals on the court, including Stevens and William J. Brennan Jr. 

“To allow the court to govern simply by what it views at the time as fair and decent is a scheme of government no longer popular,” Meese said in a 1985 speech to the American Bar Association.” “We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” 

Brennan, in turn, accused originalism’s advocates of practicing a “facile historicism” in a speech that same year at Georgetown University.

Liberal scholars say the other side selectively applies originalism only when it suits its purposes, and that it is mainly a rationale for abandoning the judicial restraint at the heart of their judicial philosophy. “Conservatives wanted to find a way to be a little less restrained and do so in the name of carrying out the intent of the framers,” says Geoffrey R. Stone, a professor and former dean of the University of Chicago Law School. “Judges don’t always have to sit on their hands and be deferential; it’s appropriate to be activist in those circumstances where framers would have intended a specific interpretation.”

It is a debate with real-world consequences, say progressive scholars, who argue that an originalist worldview would not allow for decisions such as the 1954 Brown v. Board of Education school desegregation ruling that helped usher in the modern civil rights era. 

The debate also has political consequences, particularly when it comes to judicial confirmations. By pinning the activist label on Democrats, it is easier for Republicans to paint them as outside the mainstream. 

“Republicans and conservatives have had a relatively consistent narrative about the way we talk about the judicial nominations fight,” says Steven Duffield, a political consultant who worked to confirm President George W. Bush’s nominees as counsel to Arizona’s Jon Kyl, a senior Republican on Senate Judiciary. “We have won the battle.”

The extent to which confirmations are now fought on the Republicans’ terms was on display at the confirmation hearings last summer for Justice Sonia Sotomayor, who sounded very much as Roberts had, in his own testimony four years earlier, as she positioned herself as an advocate of judicial restraint.

The Difficulties Ahead

Kagan’s nomination might be Democrats’ best shot at reframing the activist debate in decades. But it will not be an easy sell, given the current composition of the court and the type of issue Democrats will invoke to make their case.

Unlike the cohesive bloc of five liberals during the heyday of the Warren Court, and the fluid liberal-centrist coalition that dominated the debate in the early 1970s after Warren E. Burger became chief justice, today’s court is closely divided: four liberals, four conservatives and the conservative-leaning Anthony M. Kennedy as the swing vote. 

The result is that recent major decisions have not been in one ideological direction. While outraging liberals with such rulings as the campaign finance case or its upholding of restrictions on late-term abortions, the court has also continued to rein in the death penalty and grant rights to suspected terrorists. (Roberts court decisions, p. 1198) 

“You’re talking about a sort of inconsistently conservative activism,” says Benjamin Wittes, a senior fellow at the Brookings Institution. “It’s very different from the Warren or Burger court era, when the court’s aggressiveness was very consistently in a liberal direction.”

What’s more, the issues on which liberals accuse conservatives of activism— among them, property rights, environmental regulation and campaign finance — do not resonate with the public emotionally the way crime or abortion did in the past. “Even if you were able to establish the meme that judicial activism is a creature of the right, not a creature of the left, I’m not sure that a lot of people in the center wouldn’t just shrug,” said Wittes. “I’m not sure it would generate a huge amount of political energy.”

The populist argument may not necessarily resonate with the public, particularly at a time when there’s as much unease about big government as there is about big business. “Today, the big entrenched influence is big government, not big business. So all the populist impulses tend to focus on government,” says Frank Cross, a University of Texas law professor. “If government stays this way, I’m not sure the big business populist card really works.” 

Such a populist attack on the Supreme Court during a confirmation is highly unusual, says Jeff Shesol, author of “Supreme Power,” which chronicles FDR’s court- packing plan. He says it hasn’t been tried since 1930, when progressives attacked Charles Evans Hughes, who was nominated to return to the court as chief justice, and accused sitting justices as stacking the deck in favor of industrial conglomerates, railroads and gas companies. Shesol notes that Roosevelt did not take a populist tack when he attacked the court for relying on outdated notions of government power in invaliding parts of the New Deal.

But unlike 80 years ago, when Democrats attacked Hughes (the 1916 GOP nominee for president) as a tool of business interests, this time it will be their own nominee at the witness table — and that presents a challenge. “The confirmation of an Obama nominee is not necessarily the time to say why John Roberts is a jerk,” says Chicago’s Stone. 

Doug Kendall, president of the liberal Constitutional Accountability Center, says Democrats should nevertheless use the Kagan hearings as their venue since it is “the most prominent stage upon which we debate the direction of the federal judiciary.” But he conceded that it’s hard “to fit that conversation into the narrative of a confirmation hearing,” where opponents of a nominee usually have more success controlling the dialogue.

“The difficulty is how to tie their nominee to that story,” said Tom Goldstein, who argues frequently before the court and publishes Scotusblog.com.

Kagan, a Manhattan native and former dean of Harvard Law School who was schooled at Princeton, Oxford and Harvard, is not necessarily an ideal nominee for building a narrative about someone fighting on behalf of ordinary Americans over powerful interests. It might have been easier to do so around the biographies of other finalists for the current vacancy, such as Sidney Thomas, a federal appeals judge who graduated from state schools in Montana and has lived in that state his entire life.

Obama tried his best to cast Kagan in a populist light when he introduced her from a stage in the East Room last week. He credited Thurgood Marshall, for whom Kagan clerked, for teaching her that the law is not “an intellectual exercise or words on a page,” but rather “affects the lives of ordinary people.” And he noted that Kagan’s grandparents were immigrants, that her mother was a schoolteacher and her brothers are as well, and that her father was a tenants’ rights lawyer — “the kind of lawyer,” Kagan said in her own remarks that day, “who used his skills and training to represent everyday people to improve a community.”

Nor does Kagan’s work experience — devoted almost exclusively to academia and government — lend itself all that easily to being portrayed as a champion of the little guy, although the president cited her argument in the campaign finance case as evidence that her understanding of how the law “affects the lives of ordinary people has animated every step” of her career.

Roberts Court

There could yet be more ammunition for Democratic senators seeking to build a case at the confirmation hearing that the court is now a handmaiden of corporate interests. Should the court strike down a financial regulatory oversight board established by Congress in the corporate accounting overhaul law of 2002 — the constitutionality of which Kagan has worked to preserve as solicitor general — it would be the second major invalidation of an important congressional statute this term.

“In that respect, the nomination makes telling the story of the activism of the Roberts court easier,” Kendall said. But, he also said, “you cannot expect or advise a nominee to speak to these issues. That work has to come from the president and the members of the Senate Judiciary Committee.” 

The Kagan debate stands to be the culmination of a 10-year organizing effort by progressive legal thinkers, self-consciously modeled on the conservative successes of two decades earlier. In 2001, they formed their own networking organization for attorneys and law students, the American Constitution Society, that is remarkably similar in its approach to the conservative Federalist Society. Kagan has been a regular presence at the group’s annual convention, and one of its leaders is Goodwin Liu, a University of California law professor whose nomination for a federal appeals court seat advanced in committee last week over the strong opposition of Republicans.

In 2005, top liberal legal thinkers gathered at Yale Law School to begin laying out their vision of what the conversation about the Constitution should look like in 2020. That effort was modeled after a similar project Meese started, when he was Ronald Reagan’s attorney general, to construct a blueprint for constitutional interpretation in 2000.

In the years since, progressive scholars have distanced themselves from the Warren- era notion of a “living Constitution” and instead talk about applying “enduring principles” such as life, liberty and equality to current circumstances. At the same time, there is a new emphasis on judicial restraint and the idea that judges should defer to the elected branches of government whenever possible.

Obama echoed that argument a week before announcing Kagan’s nomination. “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach,” he told reporters during a flight on Air Force One. “What we’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. . . . It is important for us to understand the concept of judicial restraint cuts both ways.”

Conservatives say it’s all just window dressing on the same old liberal penchant for applying policy preferences in judicial opinions. “They are just trying to rebrand the ‘living Constitution’ rhetoric,” says Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank. “I don’t think it’s meaningfully different.”

The Democrats’ argument is more nuanced and less easily digestible than the one offered by conservatives. 

At his 2005 confirmation hearing, Roberts famously declared that as chief justice it would be “my job to call balls and strikes and not to pitch or bat.” But Democrats maintain that in the five subsequent years he has often seemed intent on favoring whichever team is most closely affiliated with corporate America. 

A report by the liberal Alliance for Justice on the “political agenda of the Roberts court” accused its conservative members of shielding corporations from liability, insulating them from environmental and antitrust regulation, and making it easier for them to discriminate against women and the elderly.

Leahy has invoked those same cases at a series of Senate Judiciary hearings starting in June 2008, where he has made the case that “business interests have been the big winners over workers and consumers.” 

The argument took on new resonance after the campaign finance ruling in Citizens United v. Federal Election Commission, which Democrats warned could open the floodgates for corporate spending in elections. Polls found that as many as 80 percent of Americans were concerned about the opinion. 

“Citizens United has changed everything,” says Kendall. “The case crystallized in the minds of Americans across the political spectrum that something is happening at the Supreme Court, and it’s not liberal judicial activism.”

Liberal activists hope that Democratic senators make the issue a big part of the debate surrounding Kagan’s confirmation. “When the tired and worn framing comes from the Republicans on the committee about originalism or not legislating from the bench or calling balls and strikes, they’ll get laughed out of the hearing room,” said Marge Baker, executive vice president of the liberal advocacy group People for the American Way. “The Democrats sense they have the wind at their backs in terms of the American public really understanding for the first time in a really long time how the court affects them in their daily lives, and as important as the issues are, the court is not just about choice, gay rights and flag burning.” 

Republicans say this is just the latest desperate gambit by Democrats to recast a debate conservatives have come to own.

“The conservative judicial activism point is a concession that conservatives completely dominate the discussion, and they have gone and taken our arguments and try to use them against the courts,” says Duffield. “It’s frankly what they have to do because we have the dominant ground.” 

Senate Republicans dismiss the activism attack as easily rebuttable, but Duffield says Republicans need to “push back hard” and to “get into the details of cases where they allege conservative judicial activism and fight it on a case-by-case basis.” 

Long-Term Project

Progressives are realistic about what they can actually accomplish during the Kagan confirmation. They say it took conservatives decades to capture the conversation, and they can’t wrest it back in one summer. 

“It takes a long time, and it’s not an easy project,” says Caroline Fredrickson, the executive director of the American Constitution Society, who noted that her counterparts at the Federalist Society are 30 years into their mission. “It took them a good 20 years before they had the upper hand.”

THE CONSERVATIVE MESSAGE: A Supreme Court justice’s role is ‘to call balls and strikes and not to pitch or bat,’ Roberts testified at his own Senate confirmation hearings five years ago. (GETTY IMAGES / MARK WILSON)

Friedman says the pace at which the public’s perception of the court changes can vary significantly and often depends on what is happening in American society.

In the 1960s, for instance, the court’s decisions strengthening criminal rights coincided with an uptick in crime rates and urban unrest. “It’s a combination of what the court is actually doing and what the ambient circumstances look like,” Friedman says.

Many legal experts say Obama, a former constitutional law professor, needs to do more than take potshots at the court for favoring “powerful interests,” as he has done repeatedly this year, and find a more prominent venue than a press gaggle aboard Air Force One to talk about judicial interpretation.

“Because Obama is such a good communicator and educator, I would love to see him get out there and make a real effort to educate people about this issue,” said Stone. “I think it’s fundamentally important, and he’s uniquely positioned given his own background to do this. But maybe the right time to do that was after Citizens United, not in the context of a judicial nomination.”

A shift could come sooner should the court embark on a dramatic shift in policy, such as overturning the recently enacted health care overhaul, which could signal a broader willingness to overturn government regulation in the future. 

“Something that big could very well change the impression on judicial activism,” says Cross, although he says the prospects for such a sudden shift are remote. “The courts aren’t that aggressive, the courts are fairly cautious.” 

FOR FURTHER READING: Kagan nomination, p. 1214; Liu nomination, p. 1223; Citizens United decision, CQ Weekly, pp. 1084, 542; Sotomayor confirmation, p. 50; Roberts court, 2009 CQ Weekly, p. 2018; Alito confirmation, 2006 Almanac, p. 16-3; Roberts confirmation, 2005 Almanac, p. 14-3; corporate accounting overhaul (PL 107-204), 2002 Almanac, p. 11-3. 

Source: CQ Weekly

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