Apply the label “activist” to these judges, however, and watch the feathers fly. That’s a slur they won’t tolerate. Most would say they are the exact opposite of an activist judge, someone they see as a meddler in the affairs of the courts, the law and society at large.
Yet, “activist” is the most apt description of the U.S. Supreme Court’s current conservative faction. The court of Chief Justice Roberts has been marked with numerous instances of expanding narrow issues in ways that have lurched the nation backward.
In the 2010 Citizens United case, the Roberts Court enlarged the scope of the case in order to loosen campaign-finance regulations in place for a century. In his dissent, Justice John Paul Stevens summed up what had happened, “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
A pattern has developed as the conservative majority on the court has acted on matters involving environmental regulation, workplace discrimination, rules governing police procedure and so on.
It looks like the court isn’t finished. This week it announced it would hear arguments in a case touching on race-based admissions standards at public universities, often known as “affirmative-action” policies.
A 2003 court decision significantly undid affirmative-action guidelines, with a majority settling for something less than overt measures to create a racially diverse student body. Race could be considered in more nuanced ways. The 5-4 decision acknowledged colleges’ needs to overcome the lingering barriers that once denied racial minorities from admission.
The majority also acknowledged that the nation’s attitudes on race where evolving slowly over time. Five justices agreed that 2003’s Grutter vs. Bollinger decision would not be the final word on affirmative action. A future court — perhaps 25 years into the future — would need to once more look at U.S. progress on integration, wrote the majority.
Forget 25 years. The Roberts Court is revisiting the issue in less than 10. The future, according to the Roberts Court, is here and now. This fall, the Supreme Court will consider the case of a white Texas high school graduate who says she was kept out of the University of Texas because of her race. A decision is expected by spring 2013.
Tom Parker, the dean of admissions at Amherst College, was shocked that issue returned so soon. He told The New York Times, “What happens with the next president, the next Supreme Court appointee? Do we revisit it again, so that higher education is zigging and zagging? If the court says that any consideration of race whatsoever is prohibited, then we’re in a real pickle. Bright kids have no interest in homogeneity. They find it creepy.”
The activist, conservative Supreme Court justices apparently have their own timetable and definition of creepy.
