Sunday, January 10, 2016

Friedrichs and Conservative Hypocrisy on Judicial Activism

On Monday, the Supreme Court is set to hear Friedrichs v. California Teacher Association. The fate of public sector unions possibly hangs in the balance; if the Supreme Court sides with the majority government unions will no longer be able to collect fees from non-members that benefit from the union's collective bargaining. The plaintiffs in this case argue that there First Amendment's rights are being violated because they are forced to financially contribute to the unions;  they claim this results in compelled political speech.

I don't think the plaintiff's case is prima facie absurd. Unions certainly engage in political activities, though they will surely point out that Ms. Friedrichs got a rebate check for activities they partook in which they considered political. The plaintiffs will counter that all union activity is inherently political; in an age when budgets are stretched at the local level across the country, teacher's wages are inherently political. I think this is a stretch, but I can see where the plaintiffs are coming from.

Which brings me to the conservative National Review.

Every day on National Review's Bench Memos page, Ed Whelan writes a blog post titled "this day in liberal judicial activism." He bemoans things like the appointment of liberal judges, the expansion of gay rights, and cases striking down restrictions on birth control. To his credit, Ed Whelan entitles this series "Liberal Judicial Activism." This is good, because his co-authors at the National Review actually love judicial activism, so long as its the conservative kind.

Over the last two weeks, the conservative magazine has posted a number of pieces arguing that Friedrics should win her case. George Will 
vents "never in its 225 years has the First Amendment been under so varied and sustained attacks." Never mind the fact that there were very few free speech cases at all for the first 130 years, the Alien & Sedition ActsWorld War I propaganda committees, or the Espionage Act of 1917. Definitely those were smaller incursions than the campus activists of today. 

Robert Alt has also done a series of posts advocating for the plaintiffs. Notably, in his post arguing that the Court should not follow precedent, he relies heavily onCitizens United. Alt claims "the howls of “politicization” by the Left if the Roberts Court fails to adhere to stare decisis are disingenuous—and, some might say, political—at best.  The Left cares little for adherence to precedent or tradition, unless it is their precedent."

Alt isn't totally wrong here; liberals surely use starre decisis [upholding prior cases] in politically convenient ways. But so do conservatives. Alt is literally accusing the left of misusing starre decisisin an article where he is saying "yes, starre decisis is great, but um not here." It cuts both ways.

But even worse for Alt is the laughable conservative hypocrisy on judicial activism. For decades, it has been common conservative rhetoric to rail against judicial activism, to decry liberal judges who used the equal protection or due process clause to expand rights to minority groups. Certainly liberals have bemoaned conservative judicial activism, but it has never been a rallying cry of the left. There is no "this day in conservative judicial activism" daily segment, even though there easily could be.

Friedrichs is judicial activism at its finest. The plaintiffs have been chosen by a public interest law firm, they did not file suit organically. The lawyers are seeking to use the courts to bring about social change rather than the democratic process. Forget federalism, the plaintiffs here wants to impose the same rule on all the states. Friedrichs would overturn a precedent of nearly four decades, throwingstarre decisis aside. It would use vague language to greatly expand rights in a way that could dramatically transform our country. The case may also be textually debatable. Remember the First Amendment, according to the Constitution, only applies to Congress. Where are all the conservative strict constructions wailing against atextual First Amendment incorporation? Nowhere to be found of course.

Friedrichs is supposed to be everything conservatives hate. But alas, the judicial activism line was always a front. It's time for conservatives to stop playing coy and admit they have always loved (conservative) judicial activism.

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