Judicial Activism on Display

Ever wonder what Constitutional law will look like in 2020? While President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court raises the question of just how much judicial activism the administration intends to foster, writings from some of his nominees also demonstrate how the President prefers progressive jurisprudence.

“The editors of this book challenged the contributors to be proactive and visionary, to look ahead to the year 2020 and contemplate constitutional change we hope to promote between now and then,” wrote Indiana University Prof. Dawn Johnsen in The Constitution in 2020, published May 2009.

Prof. Johnsen described the book as “inspired in part by The Constitution in 2000, a 1988 Department of Justice report that, along with others in a series, set forth a blueprint for radically remaking constitutional law on the great issues of the day, including by overruling dozens of Supreme Court opinions.”

Nominated by Obama to become Assistant Attorney General at the Justice Department’s Office of Legal Counsel (OLC), Prof. Johnsen holds radical leftist views on abortion. She wrote in her chapter that “The list of wrongly-decided [abortion] cases also should include several that upheld harmful and deceptively reasonable-sounding restrictions on access to abortion services at publicly funded medical facilities (even when no public funds subsidized the services), and parental notice and consent requirements.”

Prof. Johnsen later argued that “‘informed consent’ requirements amount to state-mandated antichoice propaganda, and two-parent consent requirements thwart the wishes not only of the pregnant girl but of her custodial parent.”

In another chapter, UC Berkeley Professor Rachel Moran wrote that, “These constitutional guarantees [of due process and equal protection] apply to persons, not just citizens,” criticized her colleagues for overemphasizing citizenship in America, and promoted fostering a “political voice” among noncitizens.

“The American dream has been and always will be bigger than citizenship,” she argued. “That is what made my mother’s birthright worth reclaiming.”

Moran told Psychology Today this May that she was just one year behind Judge Sotomayor at Yale University. “I got to know her through an organization called LANA (Latinos, Asians, and Native Americans). Believe it or not, at the time, there were so few members of these groups in the student body that we could not form separate organizations!” she said.

At the end of her chapter, Prof. Moran also expressed her “appreciation to [Yale] Dean Harold Koh for his support of this undertaking.”

A strong transnationalist, Koh is the Legal Adviser at the State Department, and currently on leave from the University. “Based on his public statements, one has to conclude that Koh believes in a world government financed by global taxes,” wrote Accuracy in Media editor Cliff Kincaid for a special AIM Report. Kincaid later added that “Koh’s acknowledged mentor was Harvard Law Professor and international lawyer Louis B. Sohn, who was not only a key author of the U.N. Convention on the Law of the Sea [Treaty] (UNCLOS)…but he also offered a detailed proposal to transform the United Nations into a world government in his book, World Peace Through World Law.”

In his chapter Koh differentiated between nationalist and transnationalist perspectives, criticizing former President Bush’s detention policies arguing that “the Bush administration rejected human rights universalism in favor of executive efforts to create law-free zones: extralegal spaces (Guantanamo), extralegal courts (military commissions), extralegal persons (enemy combatants), and extralegal practices (extraordinary rendition)—all of which, it claimed, are exempt from judicial review.”

Koh argued,

“To enable that global rule-of-law strategy, we need to return to a domestic constitutional vision based on Youngstown, not Curtis-Wright, a theory not of the imperial presidency but of constitutional powers shared among the executive, the Congress, and the courts and overseen by a transnational process in which the global media, networks of non-governmental organizations, and ordinary citizens all play important roles.”

Another Obama favorite, Harvard Professor Cass R. Sunstein—formerly of the University of Chicago—argued that Americans’ “ability to create an informational or communications universe of your own choosing” to be a “problem from the standpoint of the first amendment,” according to remarks he gave last year at the American University Washington College of Law.

After his nomination by the President to head the Office of Information and Regulatory Affairs, Prof. Sunstein encountered some controversy over statements which appear to be hostile to hunting and which defended animals’ right to sue through human proxies. Senator Saxby Chambliss (R-Georgia) placed a unilateral hold on Sunstein’s as “regulatory czar,” because, Chambliss told The Hill, Prof. Sunstein “has said that animals ought to have the right to sue folks.”

Nonetheless, Prof. Sunstein’s chapter in The Constitution in 2020 served as a pushback against judicial activism, emphasizing instead a doctrine of judicial “minimalism” in which judges seek to rule based on circumstances rather than broad political or constitutional principles. “Above all, minimalists attempt to reach incompletely theorized agreements, in which the most fundamental questions are left undecided, wrote Prof. Sunstein (italics in original). “They think that law, and even social peace, are possible only because people usually set aside their deepest disagreements and are able to decide what to do without agreeing on exactly what to do it,” he later added.

Bethany Stotts is a staff writer at Accuracy in Academia.