Jefferson Beauregard Sessions III of Alabama serves as ranking member of the Judiciary Committee. In that position he is the potential leader of the opposition to judicial candidates, including recent Supreme Court appointee Elena Kagan. Sessions knows the process from the other side, too: after he served as U.S. attorney in Mobile, Ronald Reagan appointed him to a federal judgeship, but Republican senators opposed the nomination after hearing evidence that Sessions had called a black assistant U.S. attorney “boy” and had advised him “be careful what you say to white folks.”
As word of the Kagan nomination was spreading, Sessions formulated the approach he would take to the next nominee in an op-ed published in the Washington Post. In the process he offered a glimpse of his curious ideas about the Constitution:
[W]hen President Obama announces his next Supreme Court nominee, the American people will want to know whether he is choosing someone who is committed to the text of the Constitution and the vision of the Founding Fathers, or whether his nominee is an activist who will shed a judge’s neutral, constitutional role to push a progressive policy agenda.
Sessions goes on to discuss three test cases that distinguish a “neutral” judge from one pursuing a “progressive policy agenda:”
Citizens United, in which the Supreme Court found that corporations had constitutionally protected rights under the First Amendment in the process of overturning campaign finance limitations. This case, which disregarded more than a century of precedent upholding the legislature’s power to limit the political engagement of corporations, changes the basic rules of the game in American elections, giving a powerful voice to corporations and labor unions. Sessions says it’s justified in terms of “original intent,” but of course there were no corporations of the sort we know today when the Constitution was being deliberated and ratified in 1789. Britain, the Netherlands, and several other colonial powers had crown-chartered corporations, which developed trade with and even exercised political control over foreign territory, but they all cracked down on corporate politicking in the course of the nineteenth century. With the Citizens United decision, America stands alone in the world as a country which grants human rights to corporations, just as it is curtailing human rights to humans. It’s a curious sign of the times.
Heller, in which the Court found that the Second Amendment required it to overturn the District of Columbia’s gun-control legislation. Sessions says this outcome is plainly dictated by the Second Amendment, and he apparently favors striking down state gun-control legislation as well. If recent oral argument before the Court is any clue, the gun-rights majority may now be prepared to do just that. This will deny local police a critical weapon to deal with terrorist plotters, who will be able to come to America and secure firearms with ease. But as Richard Posner, perhaps the country’s most prominent conservative judge, points out, Justice Scalia was only able to reach his conclusion by ignoring the actual text of the Second Amendment, and specifically the opening clause, which states: “A well regulated Militia, being necessary to the security of a free State.” The right to keep firearms is granted in connection with militia service, which means of course that states should be free to impose reasonable restrictions on it—including denying the right to purchase arms to convicted felons, psychopaths, and prospective terrorists, requiring others to justify their needs for a gun, imposing severe restrictions on assault weapons, and requiring the registration of gun ownership.
Kelo, in which the Court upheld a city’s use of eminent domain to implement a redevelopment project. Senator Sessions sees this as a violation of sacred rights in private property—the plaintiff lost her house when the city of New London decided it needed the property for an urban renewal project. In the Kelo case, liberal, libertarian, and conservative voices were united in opposition to the taking of Susette Kelo’s house, but the Court concluded that the exercise of eminent domain powers in a case like this one had to be governed by the political process and not by federal courts. The Court noted that states were free to impose tight restraints on the use of eminent domain in this context, and a number of states did just that after the decision was handed down.
Conservatives have historically railed against “activist” judges who use their authority to overturn legislation. Yet in each of these three cases Sessions sides with judges who are trying to overturn legislation, that is, “activist” judges. The judges he attacks are engaged in judicial restraint–keeping the court out of resolving questions which should be left to the political process. If the citizens don’t like the laws, these judges reason, they can of course vote in new representatives who will change them.
But another thing strikes me about Jeff Session’s Constitution. His views would be absolutely correct under the Confederate Constitution, adopted in 1861. That constitution is largely a word-for-word reiteration of the U.S. Constitution as then in force, with three significant deviations. It denied Congress the power to legislate “for the general welfare,” it stressed the property rights of its citizens, particularly property rights in slaves, and it forbade spending money on improvement of interstate commerce with a narrow exception for navigation of public waters. It moved the Second Amendment into the body of the Constitution, together with the rest of the Bill of Rights. The Kelo case would clearly have been decided just as Sessions supposes under the Confederate Constitution, because it elevated the citizen’s rights in private property and precluded the legislature from taking steps to promote the “general welfare.” The same is possibly also true of the other two cases, because of the Confederate Constitution’s weak central-government premises.
Looking at the cases that Sessions cites, the choice would appear to be between traditional justices who defer to the legislature to make essential policy choices and unelected activist conservative judges who prefer to substitute their decisions for those of the legislature. Sessions’s subliminal preference for the Confederate Constitution may well suggest the historical roots of the legal policy choices he envisions.