Vetting the new Supremes

Bruce Ackerman has an excellent article in the most recent volume of the London Review of Books. He outlines three basic choices the President has in nominating the next Supreme Court justice: a traditional conservative, a radical neo-con, or a stealth candidate. Ackerman points out that a traditional conservative (e.g. Justice Kennedy) would likely get an easy pass, while a radical neo-con (e.g. Robert Bork) would engender a vicious battle. Stealth candidates, he suggests, are the biggest danger. These are the candidates, like Clarence Thomas, who have no track record and no obvious judicial philosophy. Like the Thomas nomination, future stealth candidacies will result in further partisan fighting during nomination hearings, as well as the ascendency of radical interpretive philosophies if consent is given.

Ackerman explains that one reason these radicals are dangerous is because they seek to do away with the constitutional doctrine of substantive due process. This doctrine has its roots in the Due Process Clause of the 14th Amendment, which provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Radical neo-cons and stealth nominees (most likely drawn from the ranks of the Federalist Society) argue that this clause protects one, and only one, individual right: the right to some procedural process before life, liberty and property may be taken by the government. What is procedural process? There's a long history of cases trying to define what it is, but suffice to say that it is some kind of fair hearing before an impartial decisionmaker. Traditional conservatives and moderate jurists, meanwhile, argue that the due process clause encompasses a broader ideal. Though the clause requires procedural due process, it also protects substantive rights such as freedom of speech and religion. If government seeks to take away a person's life, liberty, and property, it must have a proper justification for doing so. In essence, the substantive due process doctrine says that not only is government limited in how it may deprive individuals of their rights, but also that government is limited as to why it may take away individuals' rights.

Perhaps as importantly, Ackerman points out that radical neo-cons and their stealth candidate brethren also wish to return to an older judidical era when the Constitution was read very narrowly so as to limit Congressional power. This goal is explicitly anti-regulatory and is known as the Constitution in Exile, a name intended to imply that proper constitutional norms were illegimately forced to the wayside when the Court shifted away from its laissez-faire jurisprudence in 1937. These new nominees could very likely go even further than recent cases like Lopez and Morrison and, instead of limiting Congressional powers, begin ruling that statutes previously authorized under the COmmerce Clause are unconstitutional. If this were to happen, vast swaths of the regulatory state, from the Clean Water Act to the Occupational Safety and Health Act could very well be gutted.

In essence, the country is faced with the prospect of radical neo-conservative activists taking over the Supreme Court. Radical conservatives may argue that they only wish to undo 70 years of liberal activism. Maybe that is their only goals, but we should be very clear on what that means. They are basically arguing that they wish to undo 70 years of Constitutional doctrine that has increased the power and liberty of individual Americans, and limited the ability of entrenched economic and political elites to control our lives. Certainly, not all Supreme Court jurisprudence of the last 70 years has been perfect, but I would suggest that Americans are better off than they would have been without it. I hope that Americans, Republican and Democrat, recognize that fact and make their opinions clear when Bush finally gets to nominate justices to the Supreme Court.