Stuart Taylor Goes Through The Looking Glass

Stuart Taylor Goes Through The Looking Glass

In his column this week (h/t), Stuart Taylor argues that most Americans want racial preferences abolished, and 71% want the Ricci decision overturned. (That’s the case in which New Haven threw out a test for promotions when all but one of the candidates who passed were white.)

Personally, I don’t think that judges should decide cases on the basis of polls, especially when the poll questions do not include a summary of the relevant laws and precedents. I would have thought that conservatives who oppose judicial activism might agree. But not Stuart Taylor:

“But is it judicial activism when the justices stretch the Constitution to go over the heads of the political branches — which are dominated by special-interest lobbies — not to overrule the voters but rather to give them what they want?

Maybe not. And it’s clear that the voters want racially preferential affirmative-action programs abolished.

Scholars have long applauded liberal justices who have stretched the Constitution’s meaning to get rid of unpopular laws that had persisted only because of special-interest pressure. One example is the 1965 decision striking down Connecticut’s anti-contraception law.

Conservatives could invoke similar logic, as well as several major Supreme Court precedents, to justify curbing unpopular racial-preference programs that — like that anti-contraception law — have persisted only because of special-interest pressure.”

I’m opposed to judicial activism, though I disagree with a lot of commenters about what counts as ‘activism’. I don’t think it’s activism when courts settle on a specific meaning for a contested term that Congress has not defined, for instance. Much more controversially, I think there’s a very interesting argument to be had about what response to the existence of the ninth amendment would count as ‘activist’.* In general, I don’t think it’s always obvious when someone is engaging in “judicial activism”, but I do think that it should be avoided.

But I would have thought that if anything counts as judicial activism, “stretching the Constitution” to enact policies that the Congress has not passed would. But apparently I am wrong! I look forward to further articles by Stuart Taylor explaining why it would not be “judicial activism” if the Supreme Court created a program of national health insurance — after all, a majority of people in the US favor that as well.

In all seriousness: I can’t believe that Stuart Taylor wrote this article with a straight face. Of course it’s judicial activism when you “stretch the Constitution” to enact new policies. Of course you don’t find out how a case should be decided by taking a poll, especially when that case involves the application of some fairly complicated law that there’s no reason to think the poll respondents know much about, and double especially when you claim to be concerned about judicial activism.

It’s hackery, pure and simple.

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*The ninth amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This plainly implies that the people have rights other than those enumerated in the Constitution, and that these should be respected, but it does not say what these are. Is it more “activist” to try to come up with some such rights, at least in the easiest cases (e.g., the right not to have the government expropriate one of your kidneys, which the framers would surely not have looked kindly on), or to pretend that the ninth amendment does not exist? Isn’t it plausible to read the ninth amendment as implying that the courts should protect not only those rights that are enumerated in the Constitution but other unenumerated rights as well, and doesn’t this imply that it actually invites “judicial activism”?

If so, doesn’t the ninth amendment force us to choose between the ‘activism’ of discovering unenumerated rights, and the opposite ‘activism’ of pretending that there is no ninth amendment? And if you choose the latter on the grounds that granting courts the power to discover new rights in the Constitution is too dangerous, aren’t you just disregarding the plain text of the Constitution in favor of producing the consequences that you think are best — which is judicial activism if anything is?