CHAPEL HILL -- When Justice John Paul Stevens was nominated to replace Justice William O. Douglas in 1975, the appointment was widely seen as moving the U.S. Supreme Court to the right. Thirty-five years later, all the signs suggest that President Barack Obama will replace Stevens with a nominee who will continue to move the court rightward. He will do so, moreover, over a shrill Republican chorus that will loudly proclaim, as it has done for over 40 years, that the Supreme Court is a bastion of "judicial activism" where unprincipled justices legislate their policy preferences from the bench.
What the Republicans fail to mention, however, is that the court has been a predominately Republican institution over the last four decades.
Eleven of the last 14 Supreme Court justices have been Republican appointees. Four members of the current court, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas, are movement conservatives. The center of the court, now defined by Justice Anthony Kennedy, is far more conservative than when occupied by Justice Sandra Day O'Connor, or before her, Justice Potter Stewart. And perhaps most notably, Justice Stevens, a Republican once appointed to move the court to the right, now stands as its most liberal member.
Of course, the Republican contention that there are justices who take it upon themselves to legislate their policy preferences from the bench has some merit. But what the Republicans again fail to mention is that it is the conservative justices, pursuing a conservative agenda, who are most subject to this criticism.
Consider, for example, the court's recent decision in the Citizens United case holding that corporations have an unlimited First Amendment right to spend money to influence elections. In Citizens United a conservative-led majority in one fell swoop overturned the policy choices of the presidency and the Congress, overruled its own precedents and presented a reading of the First Amendment that the constitutional Framers would have abhorred.
True, the court's decision was consistent with current conservative ideology but I had not thought that was the test.
One has to give the Republicans their due. Their "judicial activism" mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees under Republican presidents while effectively stilling any inclination that Presidents Bill Clinton and Obama may have had about nominating candidates who might be seen as being left of center.
But effectiveness and truthfulness are not the same. The Republican domination of the court over the past three decades has changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege.
The replacement of Justice Stevens stands as an opportunity for Obama to begin the process of returning our understanding of the Constitution to its essential moorings. Let us hope he does not let the cynical attacks of movements conservatives stand in his way.
William Marshall is Kenan professor of law at the UNC School of Law.
