Conflating Court-Created Rights and Court-Negated Rights

“This leads us to Obama's other strong belief: that courts still have a central role in protecting the downtrodden. When Souter retired, the president said he wanted to replace him with a justice who ‘recognizes that one of the roles of the courts is to protect people who don't have a voice. That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up.’"
—Dahlia Lithwick, What Does He See in Her?What Obama's choice of Kagan tells us about his own judicial philosophy, Slate

How to square the president's desire for a court that protects minorities with a court that doesn't intrude on the business of the elected branches? That's Lithwick's question.

Well, one way would be to push legislation that forces the federal courts to end their decades-long custom of dismissing virtually every civil rights lawsuit brought under 42 U.S.C. § 1983, the primary statute, enacted in the aftermath of the Civil War, to effectuate the Fourteenth Amendment by providing access to federal courts for individuals in order to vindicate constitutional rights.

The Federalist Society crowd on the Supreme Court and on the lower federal courts has effectively repealed that statute, except of course when it’s used to, say, challenge the constitutionality of a state or federal handgun law. Otherwise, there will always be some court-created procedural, jurisdictional, quasi-jurisdictional, “standing,” sovereign immunity, or “[un]qualified immunity”, doctrine to interpret as barring the litigation.

It would be nice if, when Jeff Sessions, Jon Kyl, or Orrin Hatch starts complaining about liberal activist jurisprudence in which judges decide to create substantive constitutional rights, Elena Kagan responds by, maybe, reading the text of the Eleventh Amendment and juxtaposing it with the Originalists/Textualists and balls-and-strikes-calling crowd’s rewriting of that Amendment.

Or reading Federal Rule of Civil Procedure 8(a), which is a federal statute that states what a lawsuit complaint must, and what it need not, contain, and comparing it with the Originalists/Textualists and balls-and-strikes-calling justices’ interpretation of that Rule.

Or reading the actual language of 42 U.S.C. § 1983 and then noting, say, the metastasizing of the court-created “qualified immunity” doctrine, the Court-created Younger “abstention” doctrine (see my earlier post on this) and the Court-created Rooker-Feldman doctrine.

She might then mention that the Federalist Society contingent on every level of the federal bench has embarked upon an aggressive and wildly successful effort to remove constitutional and statutory rights created not by liberal federal judges but instead, expressly, by the Constitution and by Congress.

She might also mention that Sen. Sessions recently argued in the Washington Post that the Supreme Court should simply overrule Congress’s enactments if the statutes don’t comport with conservative political ideology.

But instead, Kagan, whether by her own choice or at the instruction of her White House choreographers, will, like Sotomayor a year ago, shrug and acquiesce in the cliché that rightwing judges are originalists, textualists, and impartial umpires and that liberal judges rewrite the law in accordance with their own view of what the law should be.

And Obama, as always, will dance back and forth, but mostly back, on what liberal and what conservative jurisprudence really is.