Berks County Bar Association The Berks Barrister Spring 2021 - 31

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NO PACKING. SHOW RESTRAINT.
By Donald F. Smith, Jr., Esquire
Suffering pandemic exhaustion. I need
a distraction.
How about pondering the conflict
between judicial activism and one of
restraint? (Okay, I am a geek!) The
textbook I used to teach constitutional law
at Albright College last year defined an
" activist justice " as one who believes the
High Court should " review the actions of
the other branches vigorously, to be willing
to strike down acts the justice believes are
unconstitutional... "
	On the other hand, a " restraintoriented justice " is one who believes " the
Court should not become involved in the
operations of the other branches unless
absolutely necessary, that the benefit of the
doubt should be given to actions taken by
elected officials... "
	Ideology does not determine one's
status as an activist or as one who believes
in restraint. The most recent example of
vigorous judicial activism by conservative
justices came in the 2013 decision of Shelby
County v. Holder. Congress had recently
reauthorized the Voting Rights Act of
1965, finding the preclearance provisions
were still needed to protect the voting
rights of minorities based upon evidence
of continuing attempts of discrimination
by covered jurisdictions, as detailed in
almost 16,000 pages of testimony from 46
witnesses over 21 Congressional hearings.
By its 5-4 party-line decision, the Court,
ignoring the extensive record, held that
the preclearance provisions were no longer
needed and, thus, were unconstitutional.
There was no giving Congress the benefit of
the doubt.
	The reaction was swift. In Texas, a voter
ID bill immediately took effect, for which a
gun license was acceptable but not a student
ID. Alabama also moved fast, enacting a
law requiring a photo ID to vote but, in
those counties with the highest percentage
of blacks in the population, it then closed
the drivers' license offices, where such
documents had to be obtained.
	Three years earlier, the conservative
justices took an even more vigorous action.
In Citizens United v. FEC, they ignored
the issue litigated below, as framed by
the parties, in order to hold Congress's

ban on corporate political spending
unconstitutional. In dissent, Justice Stevens
wrote: " The Court now negates Congress's
efforts without a shred of evidence... "
	Liberals have engaged in similar
activism. My favorite example is the
Jehovah Witness flag-salute cases of the
1940s. The school district in Minersville,
Pa. had made it a legal duty for students to
salute the flag during the daily Pledge of
Allegiance. When several Jehovah Witness
students refused on religious grounds, they
were expelled. By a vote of 8-1, the school
district prevailed.

	Justice Felix Frankfurter, an outspoken
advocate of judicial restraint, authored
the Court's opinion in Minersville School
District v. Gobitis. Comparing a school
board to a legislature, he wrote: " [T]he
courtroom is not the arena for debating
issues of educational policy...That authority
has not been given to this Court, nor
should we assume it. " The basis for judicial
restraint could not have been made clearer.
	Tragically, the decision led to violence
against Jehovah Witnesses. In the span
of eight days, hundreds of cases of antiWitness violence were reported to the FBI,
including attacks on Bible meetings. One
writer described it as " open season on the
Witnesses. "
	Liberal justices began to have
misgivings. Two years later, as part of a
dissenting opinion in a case involving a tax
issue with the Witnesses, Justices Black,
Douglas and Murphy openly expressed

their regret of the Gobitis decision. In
effect, inviting reconsideration, displaying
their judicial activism.
	A year later the invitation was accepted
when an opportunity presented itself in
West Virginia State Bd. of Education v.
Barnette, a case on all fours with Gobitis.
Now, despite a strong dissenting opinion
by Justice Frankfurter, a six-justice majority
overruled the earlier decision and found the
school board's action unconstitutional. In a
very short period of time, the Court gave up
on deference and made policy. Just like the
Roberts' Court some 70 years later.
	These flag-salute cases demonstrate the
dilemma of when to apply activism and
when to show restraint. I submit the Court
ultimately got it right because fundamental
rights involving religion and speech were
at issue. How, then, do we address the
dilemma? Obviously, self-regulation has
failed.
	Certainly not by packing the Court,
as some advocate. First, the fight over
it would be costly and distracting to
the economic, health, climate and racial
equality agenda. Secondly, if successful, it
simply invites future retaliation. Finally,
packing does not eliminate concerns over
the Court's ability to engage in policy
making, overriding the other branches.
	Given that Congress must respond
in a big way to the challenges America
now faces, law professors Ryan Doerfler
and Samual Mohn, writing in the
November issue of The New Republic,
posit: " The Supreme Court can only help
by getting out of the way. " To do so, they
propose legislation be enacted to limit
the jurisdiction of the federal courts or by
" requiring supermajority consensus among
the justices to void federal legislation. "
	Not deferring to the legislature's policy
making function, when the matter has been
thoroughly studied, serves, in the words of
Justice Frankfurter, " to prevent the full play
of the democratic process. " The professors'
proposal should be pondered.
	A worthy distraction.

Mr. Smith is Executive Director
Emeritus of the Berks County Bar
Association.
		

Spring 2021 | 31
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Berks County Bar Association The Berks Barrister Spring 2021

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