Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)

I have previously argued that "judicial activism" is a bankrupt phrase. Rather than referring to any particular theory of judging, the judicial activism label is simply politically charged rhetoric that groups or individuals invoke to condemn court rulings with which they disagree. Conservative opposition to elements of Sotomayor's rulings proves this point.

Voting Rights for Felons
Recently, the Washington Times published an editorial that attempts to portray Sotomayor as an extremist who wants to give felons the right to vote. The editorial discusses her dissenting opinion in Hayden v. Pataki. In Hayden, the plaintiffs asserted that New York State systematically deprived blacks and Latinos of the right to vote by denying the franchise to incarcerated felons. The plaintiffs argued that New York's election law violates Section Two of the Voting Rights Act, which prohibits "any" policy that dilutes a racial group's votes. The plain meaning of the statute made it applicable in Hayden, but the majority explicitly looked beyond the statutory language to deny the statute's relevance and to dismiss the case.

Arch-conservative Justice Scalia is probably best known for his statutory interpretation jurisprudence which strongly condemns judges who look beyond the "plain meaning" of statutes and consult legislative history and other external sources. Sotomayor, echoing Scalia, grounded her dissent in the language of judicial restraint:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . [I]f Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to [the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

It is unclear whether New York's election laws actually dilute the votes of blacks and Latinos, but the court had to consider this as a "fact" at the particular stage of the litigation in which it issued a ruling. The only question the court considered was the applicability of the Voting Rights Act, and it actively explored external sources to reach its conclusion that the law was not applicable (See here for a discussion of Hayden and conservative flip-flopping).

Sotomayor Wants Your Guns
The latest story to spread fear and loathing through conservative America depicts Sotomayor as an anti-gun radical judge. Last year the Supreme Court held for the first time that the Second Amendment right to bear arms extends to individuals. The closely divided (5-4) ruling in District of Columbia v. Heller resolved (at least judicially) a highly contentious debate among legal historians and lawyers concerning the scope of the Second Amendment. Many scholars argued that the amendment only created a right for states to arm their militias, not a right for individuals to arm themselves. The Court rejected this view.

The Heller decision, however, does not instantly apply to states and municipalities. Longstanding Supreme Court precedent finds that the Bill of Rights only limits the federal government, not the states. This view is consistent with the history surrounding the Bill of Rights. The first ten amendments to the Constitution represent a compromise designed to secure ratification of the document. Political opposition to the Constitution centered upon the significant expansion of federal power that it created, relative to the Articles of Confederation. The Bill of Rights, which places limits on federal power, secured ratification. The explicit text of some of the amendments reveal this historical context. The First Amendment, for example, states that: "Congress shall make no law respecting an establishment of religion. . . ."

In a line of precedent decided primarily during the liberal Warren Era, the Supreme Court held that the "Due Process Clause" of the Fourteenth Amendment "incorporates" certain portions of the Bill of Rights and makes those freedoms enforceable against state governments (because the Due Process Clause explicitly constrains states). Nothing in the Fourteenth Amendment or in the history surrounding the amendment, however, explicitly states that it incorporates the Bill of Rights. Instead, incorporation resulted from liberal judicial interpretation.

As a result of a case-by-case process, the Supreme Court has deemed most of the Bill of Rights enforceable against state governments. Among the exceptions is the Second Amendment. In 1886, the Supreme Court ruled in Presser v. Illinois that the Second Amendment only limits the federal government and not the states. In 2005, the Second Circuit followed Presser and held in Bach v. Pataki that the Second Amendment does not limit state legislatures. In 2008, Sotomayor sat on a Second Circuit panel that issued a per curiam opinion in Maloney v. Cuomo that follows Presser and Bach and finds that the Second Amendment does not apply to states.

Although incorporation is a liberal doctrine and Supreme Court and Second Circuit precedent finds the Second Amendment unincorporated, conservatives have blasted the Maloney decision. But their criticism is blatantly hypocritical: They are condemning Sotomayor for following precedent. That Sotomayor's rulings adhere closely to precedent and statutory language undermines one of the popular (yet deceitful) tropes her conservative opponents have advanced against her -- that she lacks impartiality and is an ideologue. By condemning Sotomayor for adhering to precedent and strictly following the language in a statute, conservatives are behaving like inconsistent ideologues who only value judicial restraint and fidelity to precedent if doing so leads to conservative outcomes.

Final Thought
Yesterday, a very conservative panel of esteemed judges in the Seventh Circuit, including Judges Richard Posner and Frank Easterbrook, issued an opinion declining to find that the Second Amendment is incorporated. The court stated that the Supreme Court must make this decision, especially because its own precedent holds that the amendment does not apply to states. The panel also explicitly cites to Maloney as influencing its ruling. Perhaps other conservatives will embrace consistency on this issue as well. Actual caselaw refutes the conservative portrayal of Sotomayor as an outcome driven ideologue. If her opponents care about facts, rather than rhetoric, they will soon shift their views.

Note: For links to all of the essays I have written regarding Sotomayor, see: Sonia Sotomayor on Dissenting Justice.