Stripping the Gears of National Government: Justice Stevens' Stand Against Judicial Subversion of Progressive Laws and Lawmaking

Abstract

Since William Rehnquist became Chief Justice in 1986, the Supreme Court has been aggressively activist in narrowing, undermining, or effectively nullifying an array of statutes – in particular the vast edifice of regulatory, safety net, and civil rights laws enacted by both the federal and state governments since the early 20th century dawn of progressive government (collectively labeled “progressive statutes” in the article). The conservative bloc of justices have developed a formidable arsenal of largely non-constitutional techniques for limiting the reach and impact of progressive statutes, blunting or neutralizing the intent and purpose of the legislatures that enacted them, elevating the Court’s power vis-à-vis both Congress and state legislatures, and, even, impeding Congress’ practical capacity to carry out its legislative function.

For the past quarter century, Justice Stevens has been alert to this “continuing campaign,” spotlighting its excesses and countering its designs. He has done so more persistently than any of his colleagues, or for that matter, more than any observer in Congress, academia, or progressive advocacy circles. Over and over, Justice Stevens called out his conservative colleagues for “unabashed law-making,” and for “skewed interpretations” that impose “its own policy preferences,” “defeat the purpose for which a provision was enacted,” and “ignore the interest of unrepresented” constituencies whom statutes were enacted to protect. He recognized this “kind of judicial activism [as] such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.” And he never shrank from acting on that recognition, with eloquence but also the professional and strategic craft for which he was renowned on all sides.

Scholars have spotlighted, catalogued, debated, and brilliantly critiqued various of these doctrinal theories and initiatives. This Article considers them together, as elements of a campaign bent on constraining the impact of 20th and 21st century progressive legislation. The Article contributes to a Northwestern Law Review symposium on the Legacy of Justice Stevens. The symposium took place at Northwestern Law School on May 12, 2011. The symposium issue of the law review, in which this Article will be included, is scheduled for publication in the spring of 2012.

The 2011-2012 term will throw light on whether, going forward, the Roberts Court will start venting the intensely ideological activism detailed in this Article on broad questions of Congress’ constitutional authority, as well as on below-the-radar statutory interpretation issues. By the end of this term the Court will have ruled on pending challenges to the constitutionality of the Affordable Care Act (ACA). If, when contemplating the signature legislative accomplishment of President Barack Obama and the Democratic 111th Congress, the conservative justices feel inclined to sideline restraint and let ideology trump precedent, their statutory jurisprudence provides a roadmap of how they will go about that enterprise. Such a result will ratchet up pre-New Deal “Lochneresque” activism, with historic implications for the distribution of power to set 21st century domestic policy as well as its content.

Keywords: statutory interpretation, conservative activism, textualism, originalism, preemption, super-strong clear statement rules, Federal Arbitration Act, federalism, sovereign immunity, shadow precedents