Last week President Bush was in Cincinnati, delivering a speech that touted his judicial legacy:
Our Founders gave the judicial branch enormous power. It’s the only branch of government whose officers are unelected. That means judges on the federal bench must exercise their power prudently, cautiously, or some might even say, conservatively. (Laughter.)…
A lot has happened since 2000. Yet I can still remember the heated debate over the kinds of judges Presidents should appoint. One group said that judges ought to look at the Constitution as "a document that grows with our country and our history." This concept of a "living Constitution" gives unelected judges wide latitude in creating new laws and policies without accountability to the people…
I made a promise to the American people during the campaign that…we would seek judges who would faithfully interpret the Constitution — and not use the courts to invent laws or dictate social policy.
Bush’s remarks elicited this response from Senator Patrick Leahy (D-VT), who is Chairman of the Senate Judiciary Committee:
During the Bush-Cheney administration, the Supreme Court has been siding with big corporations at the expense of workers, consumers, injured Americans and investors. Recent decisions by the Supreme Court, like Ledbetter, Exxon, and Riegel have left countless Americans without redress for corporate misconduct. Justices Scalia and Thomas, along with the Bush appointees, have been on the wrong side of these decisions.
Of course, Senator Leahy is spot on in noting that in recent years, Bush model justices (Antonin Scalia and Clarence Thomas) and his appointees to the Court (John Roberts and Samuel Alito) have combined together in issuing a significant number of pro-corporate rulings that have hit hard on the pocket books of middle-class America.
But Leahy could have gone one step further in noting, that not only have these justices been on the "wrong side" of many crucial decisions, they have frequently failed to faithfully uphold the Constitution’s text and history.
Despite President Bush’s claims that his model justices and appointees possess "an abiding belief in the sanctity of our Constitution," these justices have, in practice, frequently departed from the text and history of the Constitution in recent terms. For example, just months ago in Exxon Shipping Co. v. Baker, Chief Justice Roberts joined by Justices Thomas and Scalia (Justice Alito was recused) formed the core of 5-3 majority opinion in voting against the environment, against the victims of the Exxon Valdez oil spill, against an earlier citizen jury’s decision, and against the will of Congress in favor of a huge and demonstrably-irresponsible corporation, despite sound Constitutional arguments against the Court’s ruling. As explained here, these judges were also on the wrong side of the Constitution’s text, history, and principles in their ruling on detainees’ rights in Boumediene v. Bush, and on various rulings pertaining to access to courts (as with Massachussets v. EPA and Sprint Communications Co. v. APCC Services). Too often, Bush judges have practiced "faux originalism" and "faux judicial restraint."
All of this highlights that President Bush’s lip service to “faithful interpretation” is largely empty, and that his criticism of “activist judges” is markedly hypocritical. As the new Supreme Court term kicks off and we have another opportunity to evaluate whether Bush’s model judges and appointees to the bench will actually uphold the Constitution’s text and history in several key cases, progressives everywhere should be asking themselves “who really, are the activist judges on the Court?”
This article is cross-posted at Text & History.