It must be hard being Adam Cohen, the New York Times’s editorial scrivener on constitutional subjects. It must be hard, that is, to keep straight in one’s head all those contradictory reasons for despising the “conservative activists” on the Supreme Court. Thursday, Cohen devoted an “editorial observer” column to complaining about the general awfulness of a conservative Court that overturns big damage awards against greedy corporations, even those that “kill[] people” like Philip Morris (whose case is coming up for argument), but which shrugs at the long prison terms given to recidivist felons when the decisive offense is comparatively minor.
We’ll come to the substance of Cohen’s complaints in a moment. But to begin with, he seems unable to remember what he wrote just a few weeks ago on the subject of judicial activism. On September 11, the Times published an editorial praising a study by Kentucky law professor Lori Ringhand that stripped the term “activism” of all its real content, reducing it to a matter of counting how many laws or precedents a Supreme Court justice votes to overturn — and conveniently drawing the conclusion that the conservative justices are more “activist” than the liberals. (See my discussion here.) It’s a virtual certainty that Cohen wrote that editorial for the Times, as can be surmised from this puff piece on Prof. Ringhand in the Louisville newspaper. And what did that September editorial say about activism? That Ringhand had hit upon a “reasonable, objective standard” for identifying activism, precisely by eschewing anything but the question how often the justices “vote to strike down laws.”
How does Cohen define activism in his October 26 column? Like he never heard of Lori Ringhand. Referring to the Court’s rulings that due process is violated by extraordinarily high punitive damage awards, Cohen writes: “These rulings are remarkably ‘activist’ by all the traditional measures.” You know, the measures the good professor persuaded Cohen to abandon last month. He continues: “They take a vaguely worded constitutional guarantee — that no one shall be deprived of property without ‘due process of law’ — and translate it into a right that is not at all apparent from the words’ plain meaning.” Funny that exactly this sort of thing is done in cases involving abortion and gay rights, and it bothers Cohen not at all. But at least this week Cohen is able to give a coherent description of judicial activism. Professor Ringhand may call him any time now to demand he be incoherent once again.
Now it happens that I agree with Cohen about the awfulness of the punitive damage restrictions the Court has tried to impose in the name of due process these last ten years. But it’s still to laugh when Cohen blames these rulings on “conservative justices, who are supposedly skeptical of ‘judge-made’ rights,” and then names the culprits: Justices O’Connor and Kennedy. The joke is that I can think of no one studying constitutional law who calls himself a conservative, who would apply that label to either O’Connor or Kennedy — and they are both notoriously fond of “judge-made rights,” even of inventing new ones themselves. Who are generally accounted by all observers to be the most conservative justices of recent years? Scalia and Thomas, who both dissented in both the punitive damages rulings about which Cohen is so exercised. He barely manages to mention, in a parenthetical near the end of his column, that Stevens is on the wrong side of this issue in his view, and Scalia is on the right side — but he never mentions Thomas at all.
Herewith a few simple facts. In the BMW v. Gore case of 1996, the justices who were activist by Cohen’s definition were these five: Stevens, O’Connor, Kennedy, Souter, and Breyer. Dissenting were Rehnquist, Scalia, Thomas, and Ginsburg. Yeah, that’s some “conservative” coalition in the majority, isn’t it? In the State Farm case of 2003, which Cohen also discusses, the justices lined up exactly the same, with the exception that Rehnquist changed sides to make it 6-3, perhaps out of respect for precedent, or in order to influence and moderate the opinion’s reasoning. In short, blaming these genuinely activist rulings on those terrible “conservatives” on the Supreme Court is extremely wide of the mark.
While Cohen can’t even read the scorecard where he rightly sees activism, he then turns to complaining that the Court has not been activist enough in restraining states that have enacted “three strikes” laws sending recidivist felons to long prison terms. Leandro Andrade got 50 years “for shoplifting $153.53 worth of videotapes,” and Cohen would have had the Court overrule his sentence (in Lockyer v. Andrade, 2003) as “cruel and unusual punishment” under the Eighth Amendment. This is an easier call, in his view, than ruling against high punitive damage awards on due process grounds. But it’s a matter of degree, as he implicitly admits — so Cohen really has no principled objection to activism, as long as it’s left-wing and “mild,” not right-wing and “extreme.” And who were the justices who wouldn’t vote Cohen’s way in the Andrade case? O’Connor, Rehnquist, Scalia, Kennedy, and Thomas. Dissenting were Souter, Stevens, Ginsburg, and Breyer. The most obvious, parsimonious explanation of this small sample of three cases is that the least principled justices are those who switch with the greatest facility from activism to restraint, namely O’Connor, Kennedy, and Ginsburg. Souter, Stevens, and Breyer look “principled” in their consistent attachment to government by judiciary. Scalia, Thomas, and Rehnquist display the most principled and consistent attachment to judicial restraint and republican government.
But that explanation won’t permit the New York Times to bang on terrible right-wing judges, now will it?
– Matthew J. Franck is a professor and chairman of political science at Radford University.