June 3, 2001

Don't Be Fooled. They're Activists, Too

By Simon Lazarus

With Senate gavels now in Democratic hands, we can expect an even more intense struggle over President Bush's judicial nominees. Media commentary has focused largely on whether the president will stick with his campaign promise to appoint "strict constructionists" – a phrase that many Democrats take as code for Supreme Court appointees who would overrule the 1973 Roe v. Wade abortion decision and roll back other Warren and Burger court expansions of federal judicial protection for individual rights.

This preoccupation with the Warren-Burger legacy is behind the curve. Some of Bush's nominees -- those announced so far and those to come -- have a far more radical and ambitious agenda.

In the past few years, a new constitutional philosophy has attracted numerous adherents on the political right, including at least three members of the Supreme Court. Unlike their conservative predecessors, they are not only interested in undoing the past work of "activist" liberal judges. In the name of an elaborate if quirky theory of "federalism," this group targets the New Deal, the Great Society and, above all, Congress itself. Their brand of judicial conservatism is avowedly activist: Its most prominent exponent, Justice Antonin Scalia, has written, "I am not a strict constructionist, and no one ought to be."

Scalia's allies are numerous and increasingly influential. Many are members of the Federalist Society, which was founded only 20 years ago by a handful of conservative law students as an antidote to a liberal philosophy that they felt was pervasive in the nation's legal adversaries. While the society itself is a loose confederation of conservatives and libertarians based primarily at law schools, the writings and work of its

members and like-minded thinkers show that they would try to use the federal courts to micromanage economic and social regulation, regardless of which party the electorate chooses to control Congress or the White House.

If their theory of federalism were fully implemented, the results would startle liberals, centrists and a good many conservatives as well. Venerable laws and regulations in vital sectors such as health, environmental protection, telecommunications and welfare would be struck down or rendered unworkable. Major current proposals -- including Bush's national education standards or social conservatives' national ban on partial-birth abortion -- would not survive court challenge.

Scant notice has been taken of the implications of this new form of jurisprudence, even though its principles are boldly proclaimed in a series of 5 to 4 Supreme Court decisions dating back to 1995, in rulings by federal appellate courts, as well as in the published work of scholars at think tanks and law schools. So far, the Supreme Court cases that articulate this new credo have involved relatively marginal laws or circumstances. The

$64,000 question is whether these decisions will turn out to have been the first phase of a stealth strategy, reminiscent of how the post-World War II Supreme Court moved gradually, case by case, to dismantle the legal framework of racial segregation, before discarding it altogether in 1954's Brown v. Board of Education.

To get a fix on where this strategy could lead, a revealing source of clues is where it began, the Supreme Court's 5 to 4 decision in United States v. Lopez. In this 1995 case, the court ruled that Congress lacked power under the Constitution's interstate commerce clause to enact the Gun-Free School Zones Act of 1990, which banned possession of a firearm within 1,000 feet of a school. Public reaction to the ruling was muted, largely because its actual impact was trivial; Congress promptly revised the measure, adding boilerplate findings that interstate commerce was substantially affected by school violence.

But the narrow scope of Lopez is not as important as Chief Justice William Rehnquist's rationale in his majority opinion. His aim was to staunch any possibility that regulating school violence might be a stalking-horse for "direct" regulation of the "educational process," such as a "mandated federal curriculum for local elementary and secondary schools."

In Rehnquist's theory, elementary and secondary education are exclusively state matters, off-limits to Congress. So where does that leave the centerpiece of the president's education bill -- mandated federal testing and accountability?

So far, Bush's education reformers have not panicked at the chief justice's remarks in Lopez. Presumably, their lawyers have advised that Congress will not justify mandating uniform national tests on the basis of the commerce clause, but will link it instead to federal school funding -- and thus to Congress's constitutionally broad discretion to spend for the "general welfare." But that advice may prove undependable, once advocates of hermetic federal-state separation take secure control of the federal judiciary.

Already, Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals in Richmond, one of the most outspoken advocates of the new judicial federalism, has championed construing the spending clause narrowly to prevent federal "expropriation" of state "sovereign rights," such as control over education. Northwestern University law professor Gary Lawson has observed, in the Harvard Law Review, that the Constitution "contains no 'spending' clause as such."

Two months ago, in a spending clause decision that is still reverberating in national health policy circles, U.S. District Judge Robert Cleland of Michigan barred Medicaid beneficiaries from suing state agencies that dispense Medicaid dollars. Cleland emphasized that the secretary of Health and Human Services can withhold Medicaid funding from states that violate federal requirements, but this "remedy" is a weapon

that HHS has never used. If Cleland's ruling stands, patients will be left with no practical means of ensuring that state governments actually deliver the benefits to which they are entitled.

It would be rash to dismiss Judge Cleland's decision as extreme or aberrant. His opinion closely tracked a brief submitted by Jeffrey S. Sutton, a prominent Federalist Society member who has argued several important federalism cases in the Supreme Court and is Bush's nominee to serve on the 6th U.S. Circuit Court of Appeals in Cincinnati. Moreover, rendering Medicaid unworkable would not trouble many judicial federalists; on the contrary, they strongly oppose the very type of cooperative federal-state power-sharing structure typical of many New Deal and Great Society programs, as well as Medicaid.

As explained by Michael Greve, director of the Federalism Project of the American Enterprise Institute, although American federalism is "in practice" a cooperative federalism, supported by a "broad political and scholarly consensus," it is nevertheless a "terrible idea." Greve wants the federal judiciary not only to give the states exclusive authority over designated areas; he would also have the courts bar the states from delegating their authority back to the federal government -- precisely to force state health, environmental, safety, welfare and similar programs to compete in regulatory "races to the bottom."

So how should Senate Democrats respond when Bush sends over his judicial nominations? Before turning to the individual appointees, the Democrats should use their new control of the Senate Judiciary Committee to schedule hearings aimed at clarifying the velocity and real-world impact of this new judicial ideology. Such hearings would generate light as well as heat -- a necessary and fitting way to handle a truly historic moment.