With 10 decisions to go, including two potential blockbuster civil rights rulings, it is early to be writing a headline for the Roberts Court’s current term. Still, a look at some of the term’s rulings, including two released on June 18, does belie the simplistic description of the court as one that practices restraint and avoids “judicial activism.”
The difficulty of giving useful meaning to the phrase judicial activism is worth underscoring now as the Senate Judiciary Committee prepares for the July 13 opening of confirmation hearings for Supreme Court nominee Sonia Sotomayor. Some Republican senators appear likely to accuse Judge Sotomayor of judicial activism as they question her and perhaps lay the foundation for voting against her despite her unquestioned academic and professional credentials.
For political conservatives, Chief Justice John G. Roberts Jr. is the paragon of judicial restraint and his view of a judge as an umpire with no role in writing the rules of the game is the accepted metaphor to define the approach. Roberts reprised this theme in his opinion for a 5-4 majority in District Attorney’s Office v. Osborne rejecting a due process right to DNA testing for inmates in post-conviction challenges. Alaska inmate William Osborne, convicted of a brutal rape in 1993, wanted to use new, more sophisticated DNA testing to analyze evidence in the case: semen recovered from the victim. Alaska officials refused, giving a variety of reasons as the case moved along.
For the conservative majority, Roberts acknowledged that DNA testing has come to be recognized as uniquely powerful evidence in many cases. Forty-six states but not Alaska have enacted laws guaranteeing inmates some right to DNA testing in post-conviction proceedings. Some might see those laws as evidence of a broad consensus in favor of the right. But to Roberts and the other conservative justices, they represented an argument for staying the court’s hand. “To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” he wrote.
The court’s ruling leaves inmates in Alaska and three other states with no recourse if officials refuse a new round of DNA testing, even for flimsy reasons. And, as Justice John Paul Stevens argued for the dissenters, a court ruling to establish a right to DNA testing already recognized by 46 states would not be intrusive; it “could only be constructive.”
Earlier in the term, the court was less than restrained in a pair of 5-4 decisions that similarly limited the rights of the accused. In Herring v. United States, the court’s conservatives in January crafted a new rule that prohibits the use of improperly seized evidence only if police were guilty of intentional or reckless misconduct. Then late last month, the court in Montejo v. Louisiana reached out to discard a 23-year-old precedent that had forbidden police to initiate interrogation of a suspect once he or she had a lawyer.
In both cases, the court’s ruling unsettled settled law: for some, the very definition of judicial activism. Another of the June 18 rulings similarly seemed to depart from settled legal principles: in this instance, to the benefit of employers defending federal age discrimination suits.
The issue in Gross v. FBL Financial Services was what proof to require of a plaintiff employee in a suit under the Age Discrimination in Employment Act (ADEA) in a “mixed motives” case: one with evidence of both improper and arguably proper motives by an employer for an adverse employment action. In 1989, the court had established a rule for such cases brought under the main federal job discrimination law, Title VII of the Civil Rights Act of 1964. A plaintiff in, for example, a race or sex discrimination has to show that race or sex was a “motivating factor” for an employment action; the burden then shifts to the employer to show it would have taken the same action regardless of the impermissible consideration.
Congress knew of this decision as it reworked the job discrimination law over the next two years and left the ruling untouched. In the new decision, however, the court’s conservatives held that an age discrimination plaintiff must carry the entire burden of showing that an employer improperly considered age and that the employer would not have taken the same action “but for” the impermissible consideration.
Why the difference? The two laws are written differently, the conservative majority says, and the burden-shifting framework “is difficult to apply.” In fact, both laws prohibit employment actions taken “because of” an impermissible consideration. And putting the burden entirely on age discrimination plaintiffs will also be difficult to apply: simply harder for employees and easier for employers. The reasons are makeweights. Writing again for the dissenters, Stevens aptly labeled the ruling “unabashed judicial lawmaking.”
Some critics might take a cue from Stevens and accuse the Roberts Court of unacknowledged activism. The better view is to evaluate each ruling on its terms without resort to labels. Interestingly, that is the approach that Richard Epstein, a leading conservative law professor at the University of Chicago, urges in evaluating Judge Sotomayor’s rulings. The phrase judicial activism “tells you nothing,” Epstein remarked to the New York Times. “The term ought to be scrapped.”