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

Lazarus, Simon | March 1, 2012

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 twentieth-century dawn of progressive government. The conservative bloc of Justices have developed a formidable arsenal of largely nonconstitutional 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. Justice Stevens was consistently alert to this “continuing campaign,” spotlighting its excesses and countering its designs. 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. This Article considers the conservatives’ methodological approaches together, as elements of a campaign to constrain twentieth- and twenty-first-century progressive legislation. Originally submitted for publication in September 2011, prior to the start of the Court’s 2011–2012 term, the Article forecast that cases likely to be decided by the end of that term (completed on June 28, 2012) would test whether the conservative bloc is prepared to ratchet up its hostility to progressive legislation, and more aggressively invalidate such laws as unconstitutional, rather than simply restrict their application.