In an interview with libertarian media outlet Reason.com, columnist George Will spoke out in defense of right-wing “judicial activism,” highlighting civil rights precedent as particularly problematic.
While other right-wing media outlets - most notably National Review Online - twist themselves into knots pretending efforts to roll back decades of progressive law that emanated from the New Deal, civil rights era, and Great Society are paradoxically a form of restraint, Will has taken the opposite approach. As noted in a recent interview with Reason.com, Will has “increasingly kind words for what used to be derided by conservatives as 'judicial activism.'”
Will's admission as to what the current right-wing legal movement is supporting in its quest to overturn critical progressive precedent has been criticized as hypocritical from both the right and the left.
In the Reason.com interview, Will continued his unapologetic defense of judicial activism on behalf of right-wing goals, by arguing “someone has to say what the Constitution means.” Will subsequently listed federal programs that he thought were suspect, including the interstate highway program, federal funding for state education, and affirmative action. Linking all three programs as unnecessary examples of government overreach, Will also explained that the time for state action against systematic racism was over because “routine daily insulting of African-Americans by white Americans is now completely unacceptable. That's an astonishing improvement.”
In addition to repeating this right-wing media claim that the problems of structural racism are a thing of the past and the fight for civil rights is over and “won,” Will recycled debunked right-wing media claims that affirmative action “is really not helping people, it's really hurting a lot of people,” dismissing it as only a way to “make elite universities feel virtuous.” In fact, this was not one of the many "substantial" benefits that conservative former Supreme Court Justice Sandra Day O'Connor relied on to uphold the continued constitutionality of affirmative action in Grutter v. Bollinger.
Will's refusal to honestly describe this race-conscious program to ensure equal opportunity in education, however, illustrates that whatever term right-wing media use to describe the current conservative legal assault on half a century of civil rights precedent, the end goal is the same.
As explained by constitutional law expert Garrett Epps, the conservative justices in control of the Roberts Court are busily rubber-stamping radical challenges to civil rights law, glaringly exemplified by the recent gutting of the Voting Rights Act in Shelby County v. Holder. From The American Prospect:
[The five conservative justices in Shelby County] said, in effect, that the civil-rights era is over. Minorities in the covered jurisdictions can now vote and hold office; problem solved. The requirement of advance clearance, Roberts wrote, thus has “no logical relation to the present day.” Not since the Gilded Age Court struck down the Civil Rights Act of 1875, declaring that blacks must cease “to be the special favorite of the laws,” has a Court majority shown such open contempt for both Congress and for minority rights. As the flood of vote suppression under way in its aftermath shows, Shelby County has done huge damage to the cause of racial equality.
[...]
When the issue is race, the [Chief Justice John Roberts] comes--there is no polite way to say this--a bit unhinged. [National Law Journal reporter Marcia] Coyle recalls shock in the courtroom when Roberts asked a lawyer for a local school district whether a program that occasionally used racial diversity as a tiebreaker wasn't the moral equivalent of Southern segregation. (Meese once called affirmative action “a new version of the separate but equal doctrine.”) During argument in the latest affirmative-action case, Roberts turned red in the face at the very existence of check boxes for race on college applications (he seemed to think that applicants were required to use them). Hearing a case about the Indian Child Welfare Act, he suggested that some Native American tribes might in essence be fraudulent social clubs, open to posers “who think culturally” they are Indians and want “extraordinary rights.”
The upcoming Supreme Court term will once again offer the conservative justices a chance to rewrite civil rights law when they decide whether to overturn two of their prior decisions on the unconstitutional manipulation of political processes to the detriment of persons of color. In this new case, Schuette v. Coalition to Defend Affirmative Action, the ACLU and NAACP successfully argued before the U.S. Court of Appeals for the Sixth Circuit that a ban on affirmative action in higher education clearly violated this precedent by making reconsideration of a race-conscious admissions policy uniquely difficult.
Coincidentally, this logic about the dangers of rigged political processes underpins Will's oft-repeated justification for judicial activism.
Will reiterated to Reason.com his previously stated belief that “conservatives should rethink their rhetoric about judicial activism.' The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?” Because Schuette involves a ballot initiative that a federal court found violated the Fourteenth Amendment, it will be interesting to see how Will applies his constitutional philosophy about when federal courts should intervene to a concrete example of popular sovereignty gone awry.
Time will tell if Will's recent embrace of judicial activism is as incoherent and opportunistic as his critics allege. But at the very least, however, Will's cheerleading for conservative judicial activism is refreshing.
Right-wing media are not usually this honest.