Liberals Decry Supreme Court's 'Right-Wing Judicial Activism'

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

( - During his time as chief justice of the U.S. Supreme Court, William Rehnquist has proven to be one its most influential leaders, setting a conservative judicial agenda that has swept across the nation, according to the author of a new book on Rehnquist's legacy.

American University law professor and author Herman Schwartz also said that Rehnquist's 30-year stint on the court (including 16 years as chief justice) will be remembered for the erosion of basic civil rights that were once enjoyed by millions of Americans.

Schwartz's book, "The Rehnquist Court: Judicial Activism on the Right," features essays by liberal legal scholars who dissect and criticize several decisions handed down by the Rehnquist court.

"There is no question Rehnquist will go down in history as one of the more influential chief justices," Schwartz said. "Many of the positions he has staked out on criminal justice, civil rights, federalism and access to the courts -- an enormous range of issues -- have become the positions of the court."

Civil-rights lawyer William L. Taylor documents what he describes as Rehnquist's personal agenda to the limit the rights of minorities -- views he said Rehnquist held prior to his appointment by President Richard Nixon in 1972.

"In his 30 years on the bench, he has turned his hostile views toward civil rights into law," Taylor said. "He makes it extremely difficult to prove a violation of civil rights laws. And if a plaintiff does prove a violation, Rehnquist will make the remedy as narrow as possible, providing very little redress for the victim."

More than anything else, the liberals who contributed to Schwartz's book view limitations the court has placed on federal laws as most troublesome. Schwartz said the court has overturned scores of statutes -- some of which were major Congressional actions -- during Rehnquist's reign.

"This court has created doctrines, some of them never seen before on land or on sea. It has aimed its fire at Congress again and again," Schwartz said. "The reference to 'judicial activism on the right' refers to the fact that this court has struck down more federal statues than any other court."

Charles J. Cooper, a former assistant attorney general during the Reagan era, discounted many of the arguments made in the book. Cooper said that while liberals decry the decisions of the Rehnquist court, many in conservative circles are applauding them.

He said that was the mood at last week's 20th anniversary celebration of the Federalist Society, a conservative lawyers' group.

"There was a lot of back-slapping and celebration," Cooper said. "And much of those celebrations were for the Rehnquist court."

Cooper, who has reviewed portions of the book, criticized Taylor's views on the rights of the underprivileged. He said Taylor would like the court to adopt a "we feel your pain" approach that was prevalent in the 1950s and 1960s.

The positions the court took on issues during those years, often considered a liberal era for the court, is an example of judicial activism, Cooper said. The conservative members of the court tend to prefer the term "judicial restraint" for their positions.

"The court is not, in my opinion, practicing right-wing activism," he said. "Rather, it has abandoned the old left-wing, civil-rights activism."

Not all of the liberal scholars who contributed to Schwartz's book were as tough as Taylor in their criticism of the court.

Jamin Raskin, an American University law professor, said conservatives have for the most part stood in defense of the First Amendment under Rehnquist's watch.

The Supreme Court's Texas vs. Johnson decision in 1989, a ruling that allowed flag burning, illustrated that conservatives are hesitant to chip away at free-speech protections, Raskin said. Even though Rehnquist dissented, conservative Justices Antonin Scalia and Anthony Kennedy voted with the 5-4 majority.

Raskin said the conservative justices' disdain for political correctness, which had its roots in the 1960s, plays a significant role in their advocacy for First Amendment causes.

While the liberal scholars disagreed with many of the decisions issued by the Rehnquist court, all agreed that his court's legacy would be felt for years to come. Even after the 78-year-old Rehnquist retires, Taylor acknowledged, he will have left a mark on lower courts throughout the nation.

Schwartz was more skeptical, noting that a change in the presidency, coupled with a few retirements, might quickly alter the political makeup of the court.

"Some of these [Rehnquist era] cases will last," Schwartz said, "but with the change in Supreme Court personnel, things can change quickly."

Also See:
Liberals Fear 'Harmful Implications' From Judicial Confirmations (21 Nov. 2002)

E-mail a news tip to Robert B. Bluey.

Send a Letter to the Editor about this article.