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Tuesday, Sep. 24, 2002

Judicial ideology has now become an explicit part of the judicial confirmation process, with some Senate Judiciary Committee members citing it as one basis for their decisions whether to vote to confirm judicial nominees. Ideology will likely play a large role, for instance, the Senate Judiciary Committee's current consideration of Michael McConnell's nomination to the United States Court of Appeals for the Tenth Circuit. It also was an important motivation behind the Committee's rejection, earlier this year, of Priscilla Owens and Charles Pickering for seats on the United States Court of Appeals for the Fifth Circuit.

When the substance of judicial philosophy is discussed, conservative have long maintained a rhetorical advantage. Cleverly labeling themselves "strict constructionists," conservatives have persuaded many citizens and leaders that their approach is the only one that is truly faithful to the law, and that a jurisprudence that encompasses compassion and respect for human dignity, that is concerned about the way in which the law affects people's lives, is based not on legitimate "strict" interpretation of the law, but on nothing more than sentiment and the personal preferences of those who espouse it.

But what has become increasingly clear after many years of conservative dominance of the federal courts is that conservative jurisprudence is not always faithful even to the principles its adherents espouse. A concrete example from an important but little-notice civil rights case decided at the end of the Supreme Court's last Term demonstrates the point.

The Congressional Statute That Allows Suits For Violations of Federal Rights

After the Civil War, Congress passed the Civil Rights Act of 1871. Among other provisions, it provides a cause of action for any person who is deprived under color of state law of "any rights, privileges or immunities secured by the Constitution and laws" of the United States.

The language of this statute seems clear. Indeed, it's hard to imagine a congressional enactment better designed to deter and punish violations of federal civil rights and civil liberties. Suppose you believe a police officer has violated your First Amendment rights by arresting you in because of something you said or a state government official violated a right you are given under a federal statute, say the Social Security Act. The Civil Rights Act's plain language would seem to allow you to sue for an injunction or a damages award.

Interpreting the Statue Allowing Suits for Violations of Federal Rights

That, however, is not how the five most conservative Members of the Supreme Court, at the end of the Court's most recent Term, interpreted Section1983. In Gonzaga v. Doe, the Court held - contrary to the statute's plain language authorizing suits for deprivation of "rights . . .secured by the Constitution and laws" - that an individual cannot bring suit under Section 1983 to enforce any and all rights created by federal statute.

Instead, the Court, in an opinion written by Chief Justice Rehnquist, wrote a limitation into the statute that appears nowhere in its text, under which only some federal rights can be the basis for suits. According to the Court's opinion, an individual may not sue whenever deprived of any "rights ... secured by the ... laws." Rather, the best reading of the Court's opinion is that he or she may only sue when Congress has expressed its intent, in "clear and unambiguous" language, to create not just a right, but a right enforceable under Section 1983.

Congress long ago said individuals could sue state government officials for violating federal rights created by statute. Now the Court has said they can't - unless, with respect to the particular right at issue, Congress says so a second time! For this Court, once truly is not enough. Without any support in the text, the Court has essentially rewritten this fundamental civil rights law in a way that, if followed, will dramatically limit its reach.

The consequence? In some instances, despite this important century-old law, government officials will be able to infringe rights that are protected by federal law with essentially no practical legal consequence

The Important Line Between Interpreting the Law and Rewriting It

A central argument that conservatives have long and vigorously espoused is correct: judges must interpret the law, not make it. But nowadays, the threat to that rule frequently comes - as Gonzaga and many, many other cases decided by the federal courts make clear - not from the center or the left, but from the right.

Judges must take care not to use interpretive approaches that simply permit them to enact their own political views into law. This means, among other things, reading our civil rights laws to mean what they say. When interpreting the Constitution, it means having a constant awareness of the wisdom of Chief Justice Marshall, who wrote that the judges entrusted with the power of judicial review must never forget that it is a Constitution they are expounding, a Constitution made to govern the relations between the government and the people not at a single point in time, but over the centuries. The various conservative approaches to constitutional interpretation - most of which urge that the Constitution provides protection only against a static set of government practices found objectionable at the time of the Constitution's adoption, rather than embodying broader principles capable of application in new and unforeseeable circumstances - do not do justice to this learning.

It should be no surprise that judges sometimes find themselves having to take activist or otherwise strained approaches to reach conservative results in the cases before them. The Constitution and many other sources of American law are animated by values like the protection of individual liberty and equality, fairness, and respect for human dignity. What the Supreme Court said of the Constitution in its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, is true of so much of American law: it "serves human values."

As the Senate evaluates the judicial nominees before it, it should seek to ensure that they espouse methods of judicial interpretation that are faithful to those traditional American values. For it is those values that - though now often neglected - have long provided the law its vitality and its moral authority.

Peter J. Rubin is a professor of constitutional law at Georgetown University. He is also President of the American Constitution Society for Law and Policy.

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