Legal News

From One Conservative to Others: ?Not Every Wrong Has a Judicial Solution.?

By Ashby Jones

A somewhat surprising opinion piece turned up today in the pages of the NYT, written by noted conservative and National Review senior editor Ramesh Ponnuru (pictured).

“This summer is turning into a seminar on race and the law,” writes Ponnuru, to open the piece. And he thinks the “seminar” is “highlighting a deep inconsistency in the way my fellow conservatives approach race and the law.” When it comes to that topic, writes Ponnuru, “too many conservatives abnadon both originalism and judicial restraint,” two bedrock principles of conservative-minded jurisprudence.

Ponnuru questions the dissenting opinion made by Justice Clarence Thomas in the recent Voting Rights Act. Justice Thomas would have voted to get rid of Section 5 of the Voting Rights Act, which requires certain jurisdictions to get “pre-clearance” from the DOJ or a federal court before making tweaks to their voting procudures.

Writes Ponnuru:

Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it.

In fact, none of the justices - not even Justice Thomas, the most originalist member of the court - discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary.

Ponnuru also questions his fellow conservatives over the case, currently pending at the Supreme Court, of Frank Ricci, a New Haven firefighter who in 2003 passed a test to get a promotion, a test which was later thrown out by the city because black firefighters were not doing well on it. Ricci sued in federal court and lost. He lost on appeal as well.

On Ricci, Ponnuru writes:

Ricci probably deserved his promotion and had a right to his day in court. . . . [T]he legal arguments for his position . . . include reasonable readings of Supreme Court precedent. They just aren't originalist arguments.

To conclude that New Haven acted unconstitutionally is to assume that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

Judicial restraint has also been absent. . . . To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by "judicial activism."

[W]e on the right, of all people, should know that not every wrong has a judicial solution. Conservatives are moved, as well, by their empathy for the Frank Riccis of the world. When President Obama has talked about empathy on the bench, conservatives have responded that, given free rein, it can lead judicial reasoning astray. On race, unfortunately, we are illustrating our own point.

LB Readers, we’d love to hear your thoughts.

Full post as published by Law Blog - WSJ.com on June 24, 2009 (boomark / email).