The High Court

Recent high court cases revive debate on judicial activism

Justices John Paul Stevens, left, and Samuel A. Alito Jr. recently sparred on two key cases.
Justices John Paul Stevens, left, and Samuel A. Alito Jr. recently sparred on two key cases. (Mark Wilson - Getty Images)
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By Robert Barnes
Washington Post Staff Writer
Monday, May 3, 2010

Sometimes, like a spouse, a Supreme Court justice will hold onto the words of another just so he can throw them back in the future.

So it was last week, in the court's splintered decision that gave hope to supporters that a cross erected on public land in the Mojave Desert might be allowed to stay. Justice Samuel A. Alito Jr. explained that Congress's proposal for a land swap was an acceptable way to abide by a lower court's ruling that the religious symbol could not stand on public ground.

"A well-informed observer would appreciate that the transfer represents an effort by Congress to address a unique situation and to find a solution that best accommodates conflicting concerns," Alito wrote. "I would not be 'so dismissive of Congress.' "

That last phrase came from Justice John Paul Stevens' stinging dissent in the case that seems to be defining the court's term, Citizens United v. Federal Election Commission. Stevens castigated the majority in that case for substituting its judgment for Congress's expertise and for greatly increasing the financial role corporations may play in elections.

Stevens, who was also on the losing side in the cross case, was quick to reject the conservative majority's newfound deference to Congress.

Alito's "attempt to draw an equivalence between a provision tucked silently into an appropriations bill and a major statute debated and developed over many years is, to say the least, not persuasive," Stevens replied. "All legislative acts are not fungible."

There's a point to all this, and it goes to President Obama's comments last week that both liberal and conservative judges and justices should curb activist tendencies.

"The core understanding of judicial restraint," Obama said, "is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it, is afforded some deference as long as core constitutional values are observed."

The rub, of course, comes with that last part -- "as long as core constitutional values are observed."

It is the tension between deferring to the political branches and protecting the Constitution that makes it difficult to assign labels such as judicial activist, say those who have studied judicial voting patterns.

"The court is 'activist' when it strikes down legislation, but that is its job," said Corey Yung, a professor at the John Marshall Law School in Chicago who has written extensively on the subject. "We want them to say, 'This is what the Constitution says, and Congress is not following it.' "

Yung said judicial activism has gotten an undeserved bad rap; he points to the court's 1944 decision in Korematsu v. United States endorsing the executive orders used for interment of Japanese Americans during World War II as an unfortunate example of judicial restraint.

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