In the last of his memorable dissents, Justice Antonin Scalia complained that nine unelected justices had no business deciding whether states could or could not deny marriage rights to same-sex couples. The issue, Scalia wrote in Obergefell v. Hodges, was for the people to decide through their elected representatives, not for the justices to decide under the Constitution’s Due Process and Equal Protection Clauses.
Scalia’s last official action as a justice was to provide the critical vote along with four other conservatives, to put the Obama administration’s major initiative on climate change on hold at the Environmental Protection Agency (EPA). None of the five had any training in environmental science, but Scalia apparently had no qualms about substituting his view of the policy over that of the EPA director who had been duly appointed by the president and confirmed by the Senate.
The court’s decision [Feb. 9] to issue a stay of the so-called Clean Air Program in West Virginia v. EPA came before any court had had a chance to rule on the merits of the challenges filed by states, business groups, and the electric utility industry. The stay, issued with four liberal justices dissenting, appeared to violate the oft-stated maxim that the Supreme Court is “a court of final review, not first view.”
The court’s decision to insert itself into the controversy at an early stage touched off criticism not only from environmentalists but also from procedurally-minded Supreme Court watchers. The debate over what amounted to procedural activism was still raging in the blogosphere and elsewhere as Scalia left Washington later that week for the fateful hunting trip to Texas.
Scalia’s death and the fierce political battle over the selection of a successor eclipsed any further debate about the court’s action in the EPA case. Years from now, however, the court’s one-paragraph order that day may well be remembered as the closing curtain for a quarter-century of conservative judicial activism dating from the early Rehnquist Court through the first decade of the Roberts Court.
For most of his 29 years on the court, Scalia was part of a conservative five-justice majority that formed regularly to bend or outright overrule precedents, some of them recent and others of long-standing. The conservatives did this even as they and their supporters generally extolled the virtues of judicial restraint and decried activist judges.
The Roberts Court’s record of conservative activism is well within recent memory. The campaign finance decision in Citizens United and gun rights decision in District of Columbia v. Heller stir liberals and progressives into indignation and action and draw equally fervent defenses from conservatives and libertarians. Both decisions notably overturned precedents dating back two decades in the campaign finance case and 70 years in the gun rights case.
The activist era began much earlier, however, with the appointment of the moderate conservative Anthony M. Kennedy to the court in 1988. Kennedy was no Robert Bork, but in his first full term Kennedy provided critical votes for decisions that cut back enforcement of the job discrimination provisions of the Civil Rights Act of 1964. A Democratic-controlled Congress responded by overturning some of those decisions with the Civil Rights Act Amendments of 1991, signed into law by a Republican president, George H.W. Bush.
With the appointment of Justice Clarence Thomas in 1991, the stage seemed set for the overturning of the abortion rights decision Roe v. Wade. But Kennedy blinked, providing the critical fifth vote needed to reaffirm Roe while creating more leeway to regulate abortion procedures.
The Rehnquist Court was more aggressive over the next decade, however, on a range of issues. Several lines of precedents issued generally on 5-4 votes favored states’ prerogatives in federalism disputes. In an opinion written by Scalia, the court ruled that Congress could not require states to help implement the background checks provision of the Brady Act. Rehnquist added a decision blocking Congress from using its Commerce Clause power to enact the Gun Free School Zones Act.
In a line of precedent-upsetting decisions, the court expanded the scope of the 11th Amendment to hold that states cannot be sued for damages for violating federal laws, in federal courts or even in state tribunals. In other areas, the Rehnquist Court cut back on remedies in school desegregation cases and gave state and local governments more leeway to provide assistance to parochial schools.
The conservatives became if anything bolder when Rehnquist was succeeded by his former law clerk John G. Roberts Jr. and the unbending conservative Samuel A. Alito Jr. succeeded the swing-vote justice Sandra Day O’Connor. In their first full term, Roberts and Alito provided the votes in 2007 to throw out a 100-year-old antitrust precedent, uphold a federal partial birth abortion ban nearly identical to a state law struck down seven years earlier, and limit local authorities’ leeway to promote racial balance in public schools. Then, in a two-step sequence, Roberts led the court in warning Congress to rewrite the Voting Rights Act and, when Congress failed to act, gutted the law with the decision in Shelby County v. Holder.
Over time, conservatives came to think better of activism, with some in academia and elsewhere now openly advocating a bull-in-the-china-shop approach to liberal precedents. But if President Obama can find a consensus candidate who can pass muster with the Republican Senate, the conservative bloc is likely to be denied on the highest-profile issues. If not, then Republicans and Democrats will be right in saying that the court’s future could turn on the outcome of the presidential election in November.