This interview was conducted by Jeffrey Dubner, associate Web editor of the American Prospect. It originally appeared in the American Prospect Online on December 17, 2004. The text is ©2005 by The American Prospect, Inc. and appears here with their permission.

Question: Why do you call the current Supreme Court “activist”?

Thomas M. Keck: There are several reasons why I reach that conclusion. Perhaps the most striking reason is that the [post-1994] Rehnquist Court has struck down federal statutes as unconstitutional more frequently than at any previous point in the Court’s history. The Court has struck down 33 federal statutes since 1995, which is a literally unprecedented rate.

Question: The phrase “judicial activism” is a frequent whipping boy, but what does the phrase actually mean?

Keck: The epithet essentially means “a judicial decision I disagree with,” but there can be some content to it. The definition that makes the most sense to me is that an activist court is a court that is relatively willing to assert its own power over and against the other institutions of government.

Question: How did the Court reach that point? Was it a break from the mid-20th-century Court before it, or was it a natural progression from that?

Keck: I would call it a natural progression. In the late 20th century, conservatives spent a lot of time and energy criticizing the liberal activism of the Warren Court. But then they themselves took over the federal courts right and it no longer seemed such a good idea to urge a restrained conception of judicial power because they now held the reins of that power.

So that’s part of the story. You could paint that as not particularly surprising—well, what else would happen? Anybody who takes over the courts is going to try to use judicial power to their own end. What complicates the story is that the current Court has mobilized judicial power in a liberal direction with some frequency as well. None of the landmark decisions of the Warren Court have been overturned, and many of them have been expanded and pushed further. The end result is a lot of judicial action.

Question: Can you give us some examples of particular topics that they’ve been activist on?

Keck: Of the liberal activism, the most noted example is the continued reaffirmation of Roe v. Wade. Another great example is the area of gay rights, where it’s been the Rehnquist Court that has for the first time extended constitutional protections to gay and lesbian rights—in 1996, with Romer v. Evans, and then again in 2003, with Lawrence v. Texas. And there are a lot of examples in the areas of free speech, freedom of religion, and other rights in the liberal, Warren Court tradition.

On the conservative activism side of the fence, perhaps the best set of examples are the cases regarding federalism, a whole bunch of separate sets of cases whose overarching theme is the revival of constitutional limits on federal government power. It’s not like these decisions have gone that far; they haven’t tried to strike down the New Deal. But the implications of them are potentially sweeping, were they to carry them as far as the rhetoric suggests.

Question: You argue that one of the reasons they haven’t been that sweeping is the moderating influence of, in particular, Sandra Day O’Connor and Anthony Kennedy.

Keck: Their role has been particularly significant because the membership of the Court has been so stable for 10 years, with O’Connor and Kennedy in the middle. So when they vote with the liberals, the Court reaches a liberal result, and vice versa. In many ways, the key to understanding what the Rehnquist Court has been all about is that the conservative justices don’t agree with each other. It’s a little bit of an oversimplification, but I think it’s fair to say that you can divide them into two groups. O’Connor and Kennedy are one, and [Chief Justice William] Rehnquist, Antonin Scalia, and Clarence Thomas are the other.

Those two groups of conservatives agree on one very significant thing: They all are willing to actively use judicial power to promote conservative visions of the Constitution. But they disagree on how far they’re willing to go. O’Connor, in case after case after case, joins her fellow conservatives, but writes a separate opinion to narrow the reach of the decision—I’ll go this far, and no further. Kennedy sometimes does that as well. And unlike Scalia, Thomas, and Rehnquist, O’Connor and Kennedy are also willing to use judicial power to promote liberal versions of constitutional principle.

Question: What about Rehnquist himself? How have his opinions seemed in terms of activism and political bent?

Keck: He’s a little bit tougher to pin down. I characterize Rehnquist together with Scalia and Thomas, but he actually does disagree with them on a couple important points. In particular, to some significant degree Rehnquist really does believe in the principle of judicial restraint, or judicial deference, certainly to a greater degree than his fellow conservatives. But he’s been willing to exercise judicial power actively in a variety of areas. Federalism is again the best example, because that’s the area where Rehnquist has been most influential. The current Court’s federalism opinions have [been] built to a significant degree on dissenting opinions by Justice Rehnquist in the 1970s.

Question: Scalia and Thomas often appeal to the theory of “originalism” in their opinions. What is that theory?

Keck: The theory of originalism is that the Constitution’s meaning is fixed at the founding and does not evolve over time, and that if we want to change the meaning of the Constitution, there’s one legitimate way to do so, which is to actually amend the text; and that it is illegitimate for the judges—the unelected judges—to revise the meaning of the Constitution in the course of interpreting it.

Question: You write that “it is difficult to avoid the conclusion that the conservatives sometimes bend the original Constitution to promote conservative ends.” What brought you to that conclusion?

Keck: Say you’re going to have a hypothetical conversation with Justice Scalia. You say, “OK, Justice Scalia, now why is it that in these cases you make a very strong argument for judicial deference and restraint, and yet in these cases you’re willing to strike down federal law after federal law?” And here’s what Justice Scalia would say: “Where the Constitution is silent, we’re supposed to do nothing; and where the Constitution imposes some limit on governmental power, we’re supposed to actively enforce it.”

It’s clearly true that the original meaning of the Constitution has sometimes influenced Scalia’s decisions; he clearly takes that seriously in some contexts. But look at the broad pattern of cases in which he’s willing to actively assert the Court’s power. The list doesn’t look exactly like a list of Republican policy priorities, but it’s a little bit too close. It looks more like the modern list of conservative policy priorities than it does like any plausible reading of the 1787 Constitution.

Question: What separates Justices Thomas and Scalia?

Keck: I think scholars have increasingly been pointing out—correctly in my view—that Thomas has had a little bit of a bad rap, and that his opinions are just as high a quality as anyone else’s. One thing I will say about Thomas is that on some of the occasions when he and Scalia part ways, it’s because Thomas parts ways with everyone. Just as I was saying that O’Connor tends to agree with the conservatives but not go quite as far, Thomas is sometimes willing to go even further than Scalia or Rehnquist. The federalism cases are a great example, where Thomas, in a series of concurring opinions, has appeared to suggest that we really do need to return to the original understanding of federal legislative power, regardless of the apparently sweeping implications for virtually all the federal legislation that has been passed in the 20th century, all of which would apparently be unconstitutional. But none of his fellow conservatives are willing to go that far.

Question: When Rehnquist resigns, George W. Bush will select a new chief justice. In what ways does a chief justice leave a mark on the Court?

Keck: It’s not that significant. The chief justice has some significant powers that the other justices don’t have—he gets to assign the opinions if he’s in the majority, which means he can assign them to himself when he wants to, take control of whatever he wants, or assign them to an ally—but he just has one vote among nine. He really is the first among equals. Some chief justices have succeeded in putting their mark on the Court, but other chief justices have been overshadowed by some of the associate justices on the bench with them.

Question: Would you put the Rehnquist Court in that latter category?

Keck: I’m of two minds about this. Rehnquist has had an extraordinary influence on the Court. He’s been on the bench for a very long time; as I said before, many of his dissenting arguments from the 1970s have become the law. But because O’Connor has so often gone along with him so far, but no further, and frustrated some of his most significant goals, I think it does ultimately make more sense to call the current Court the O’Connor Court, but I don’t want that to be taken to suggest that Rehnquist has not been influential, because he really has been.

 

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Thomas M. Keck
The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism
©2004, 370 pages, 11 tables
Cloth $65.00 ISBN: 0-226-42884-2
Paper $24.00 ISBN: 0-226-42885-0

For information on purchasing the book—from bookstores or here online—please go to the webpage for The Most Activist Supreme Court in History.

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