07 March 2004

Grenāda, Grenăda

Professor Balkin provides a lucid explanation of judicial activism and how it is ideologically neutral, rather than a creature of "liberalism." Basically, Professor Balkin notes that calling a decision in the 1850s a "mainstream" position because conservatives today would not object to it is at best disingenuous. Instead, judging whether a particular "activist" decision is "conservative" or "liberal" must be based upon the standards of "conservatism" and "liberalism" current at the time the decision was made.

Professor Balkin's position becomes even more clearly correct when one applies the corollary of the opposite argument to recent "activist" decisions. Under that rule, we cannot judge whether recent decisions are "conservative" or "liberal" now; we have to wait years, decades, centuries until there is a need to reevaluate them, because only the definitions of "conservative" and "liberal" current in, say, 2025 (a short wait indeed!)—or, more properly, the policy preferences identified with "conservative" and "liberals" in 2025—can tell us whether a decision in 2003 is "conservative" or "liberal" in nature. If, of course, we assume that "activist" is objectively definable and not just an attempt to turn a descriptive term into a smear.

Consider, for example, the Michigan affirmative action decisions from this last term. One simply cannot call these decisions "activist," because they are founded on a seasoned (if not entirely defensible, as the Court admitted sub rosa by relying mainly on a concurrence) precedent: Bakke. Calling decisions "activist" because they attempt to delineate an extremely fine boundary—to make a distinction of degree, rather than of kind—only confirms that "activist" means "something of which I disapprove." What if the Michigan admissions programs had adopted an "economic background" test instead of one based explicitly on race? That would largely function as a proxy for race and ethnicity, as African-Americans and Latinos make up a disproportionately large segment of the lowest economic quintile (and the converse), but could be attacked as "irrational" only by using "disparate impact" analysis similar to that found in employment discrimination law. Routinely applying disparate impact reasoning to basic civil rights (other than voting) without a clear reason to believe in pretext would be a radical change in approach, as that approach has been repeatedly rejected—not to mention being so fact-intensive that one would be hard-pressed, even years later, to draw internally consistent rationales from decisions using such an approach.

What I find most interesting is that the examples cited by Professor Balkin and the others involved in this debate never reach obscenity and limitations on noncommercial speech. The farthest they seem willing to go is consideration of the "commercial speech" doctrine, which is admittedly a mess. Far more interesting than whether Central Hudson is a "conservative" or "liberal" decision is the question of whether Miller v. California and Roth v. US are "conservative" or "liberal" in their approaches. Of course, that gets into the question of what truly "liberal" means; I would exclude from "liberal" the extreme protofeminist position of Andrea Dworkin that all pornography is wrong because it exploits and demeans women, and therefore must be censored, but some others would not. Perhaps more important, the failure to grapple with the problems presented in Snepp v. US—which applies principles of contract law to suppress political speech—reveals a great deal more than the particular controversies cited by Balkin, Buck, and others.