Keep activism on the other side of the bench

Statements that Governor Bush made during his campaign might make you think conservative justices are "strict constructionists" - rather than activists. Think again. In recent years, conservative justices have widened judicial control over legislative policy choices that don't threaten individual constitutional rights. The next president's judicial appointments may determine whether the Supreme Court substitutes its own policy views for those of legislators.

This activist approach threatens federal ability to address problems that require national attention. Take, for instance, environmental protection.

The Nov. 7 election of congressional representatives should, under the Constitution, largely shape future environmental law. But a Supreme Court case being argued the same day may have even more influence.

In a case brought by the American Trucking Association (ATA), the court will decide if Congress may direct the Environmental Protection Agency (EPA) to set air-quality standards protecting the public from pollution. The standards at issue limit soot and smog, which are linked with thousands of deaths and millions of asthma cases every year. Industry wants the court to rewrite the Clean Air Act to allow the EPA to compromise health protection if compliance appears costly. That would set a precedent for judicial revision of statutes.

The court will also decide this term whether the federal government may protect wetlands providing migratory bird habitat. We have been losing wetlands piecemeal at an alarming rate, imperiling many species and harming water quality. The precedent the court establishes in these cases could limit federal authority to protect the environment from a host of future threats and undermine many laws now on the books.

Elected representatives, not unelected judges, should make key policy decisions about federal protection of public health and the environment. Indeed, Congress has actively considered regulatory reforms like those polluters now seek from the court.

Polluters have asked the court to circumvent congressional decisions they dislike, because they believe conservative justices may revive an activist approach that discredited the court prior to the late 1930s. Under that approach, the justices imposed their own views on the country through pro-business "interpretation" of the Constitution and statutes. The court advanced a laissez-faire economic theory from the bench, invalidating laws protecting working people as unconstitutional, and interpreting antitrust statutes aimed at the Microsofts of that era as grounds for jailing strikers and picketers. After striking down key New Deal legislation to combat the Great Depression, the court mended its ways, repudiating the use of the Constitution and antitrust law to advance the justices' social-policy views.

If the justices allow their views of cost-benefit analysis to influence their ruling in the ATA case, they may revive the practice of letting a judicially favored economic theory displace democratic decisionmaking.

The Clean Air Act clearly requires the EPA to base its air-quality standards on public health alone. But states may consider costs when they regulate industry to meet these standards. This approach has produced benefits exceeding costs by almost $22 trillion, according to a peer-reviewed EPA study. While opponents have a right to ask Congress to revise the Clean Air Act, the Constitution does not authorize unelected judges to rewrite legislation that the judges regard as unwise.

A partial return to the old days might empower the justices to rewrite environmental laws. In recent years, conservatives mustered 5-to-4 majorities to resurrect a constitutional doctrine used to establish judicial control over the fate of progressive-era and early New Deal legislation. For the first time since 1936, the court in 1995 held a law to be beyond the federal power to regulate interstate commerce. Last term, the court struck down the Violence Against Women Act on similar grounds. Now litigants use these new 5-to-4 precedents to attack congressional authority to regulate wetlands.

In ATA, industry seeks a revival of the "nondelegation" doctrine that led to the demise of the National Recovery Act in 1935. Such a revival could empower judges to shape public-health laws and environmental laws to their tastes by finding those they dislike so vague as to require judicial revision.

As the court addresses environmental legislation, it should remember that the Constitution does not enact the ideas of today's law and economics movement any more than the laissez-faire views of Justice Holmes's day. Congress, not the court, should decide whether to amend our environmental laws. And voters should know that justices who call themselves "strict constructionists" have led an activist resurgence of judicial control over social policy.

David M. Driesen teaches constitutional and environmental law at Syracuse University. He filed a friend-of-the-court brief on behalf of the US Public Interest Research Group Education Fund in the ATA case. These views are his own.

(c) Copyright 2000. The Christian Science Publishing Society