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Cass R. Sunstein, The Courts' Perilous Right Turn, in The New York Times, at 25 (June 2, 1999)

Conservative politicians often complain about the decisions of liberal Federal judges who, they say, do not respect the judgments of elected officials. For example, they object to judges who have struck down laws restricting abortion and regulating sexually explicit materials.

But judicial activism on the part of conservative judges is a much more serious problem, as some Reagan and Bush appointees have proved far too willing to invalidate decisions made by Congress and the executive branch.

Last month, for example, the Court of Appeals for the District of Columbia Circuit struck down a provision of the Clean Air Act, as interpreted by the Environmental Protection Agency, on the grounds that it represented an unacceptable transfer of power by Congress to the executive branch. This remarkable departure from precedent could, if taken seriously, bring much of the activity of the Federal Government into question.

The Court of Appeals for the Fourth Circuit has recently embarked on a campaign on behalf of states' rights. It invalidated the Violence Against Women Act, Clean Water Act regulations and the Drivers' Privacy Protection Act, which was intended to prevent states from selling information on registered drivers to private companies for profit. All three were ruled beyond the power of Congress.

Many conservative judges, including Chief Justice William Rehnquist, believe in a modest role for the Federal judiciary. These judges tend to favor cautious steps and to respect the democratic branches of government.

But, as the recent decisions suggest, there is a more extreme, even radical form of conservative thought, led by judges who believe that they have privileged access to what the Framers "really" meant. Such judges are quite willing to strike down laws that depart from their view of the Constitution, even if the result would be sweeping changes in the nature of American Government.

History has been not kind to conservative judicial activism. This was the approach that led the Supreme Court, under Chief Justice Roger Taney, to strike down the Missouri Compromise on the theory that slavery was an inherent part of the Constitution. The same reasoning led the Court to mount its long, now discredited attack on minimum-wage and maximum-hour legislation in the Progressive and New Deal eras.

All too often, conservative judicial activists ignore other reasonable interpretations of the Constitution to entrench their own and do so at the expense of democratic self-rule.

A strong judicial role is certainly necessary when a law unambiguously violates the Constitution. Judges should not hesitate to protect democratic government itself, as in cases where the court shields disenfranchised groups or safeguards political dissent.

But some conservative judges are fighting democracy, not working with it. They should be guided by Oliver Wendell Holmes Jr., who wrote that the Constitution "is made for people of fundamentally differing views." The fact that some judges find certain laws "novel and even shocking," he continued, does not mean they should hold that those laws violate the Constitution.

Conservative judges would do well to follow Holmes's wisdom and show greater respect for democratic government.


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