Vocal III Seminar: The Supreme Court:Strict Construction vs Activism February 2, 2006

The Supreme Court: Strict Construction vs. Activism


Richard J. Garfunkel

February 2, 2006


Hello and good morning to all of you. My name is Richard J. Garfunkel, and I will serve as the leader for this forum. I want first to thank Reva Greenberg, from Westchester County’s Office of the Aging and VOCAL, who invited me to partake in this endeavor and to also thank Vera Schiller who recommended me to follow her husband Irv, who led these “speak-outs” in the past. I want to welcome you to the 2nd session of the 2005-6 season of VOCAL’s Westchester County’s Intergenerational Advocacy Educational Program, speak-out forum for senior citizens. Basically this is a program that encourages seniors to voice their opinions on a subject of interest to our communities, whether local, regional or national. Its purpose is to help empower people to learn how to ask the right questions, find out information that is necessary for both their physical and mental well-being and add to their cultural and social awareness. By speaking out and using their mind with regards to current public policy issues seniors, like all of us will benefit.


My opening statement regards the important Public Policy question of the Supreme Court  “Strict Constructionist” vs. Judicial Activism. In the last 73 year since the dawn of the New Deal we have seen a dramatic change in not only the composition of the Supreme Court but its sense of purpose and direction. The changes began in FDR’s time as a result of the make-up of the Court at the time he took office and the fact that the Court started to strike down New Deal legislation. As Oliver Wendell Holmes stated, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void,” at the end of the 19th Century. “I do think that the United States would be imperiled if we could not make that declaration as to the laws of several states.” By the time the nation entered the worst economic depression in its history during the 1930s, the Supreme Court possessed considerable doctrinaire flexibility. Ironically when Herbert Hoover left office in March of 1933, he left the new President Franklin Roosevelt with the most liberal court in a generation with his three appointments Charles Evans Hughes, Benjamin Cardozo, and Owen Roberts. Initially the Court fulfilled its liberal expectations, but in 1935 it started to splinter apart with the shifting of Roberts to form a majority against the heart of the New Deal and the power of the executive. The so-called liberal block of Cardozo, Brandeis and Stone even joined the other Justices in invalidating parts of the NIRA. President Roosevelt compared their behavior to that of the Justices in the Dred Scott case. Eventually even the Agricultural Adjustment Act was ruled unconstitutional in 1936. Viewing the wreckage in the summer of 1936, Felix Frankfurter was moved to denounce the Court’s “unreason and folly” for erecting constitutional barriers to both state and federal action against the depression.


The Supreme Court during FDR’s Administration


1911-37                     Van Devanter                        1932-38            Cardozo           

1914-41                     McReynolds                        1937-71            Black   (FDR’s appointees)

1916-39                     Brandeis                        1938-57             Reed

1922-38                     Sutherland                        1939-62            Frankfurter

1922-39                     Butler                                    1939-75            Douglas

1925-46                     Stone                                    1940-49            Murphy

1930-41            Hughes                        1941-41        Byrnes

1930-45            Roberts                        1941-54            Jackson

1943-49                     Rutledge




Six months later, however in the aftermath of FDR’s crushing victory and his legislative initiative to reorganize the federal judiciary by adding new justices when those over the age of 70 did not retire, the Court reversed gears once again. Hughes and Roberts again supported the old pre-1935 majority and New Deal legislation on labor reform was sustained.  Therefore without replacing any justices, the Chief Justice understood the mood of the country in the wake of the landslide and supported the New Deal’s role in re-shaping the federal government and its response to the Great depression. Eventually FDR appointed 8 justices and the court went from the Hughes Court to the Roosevelt Court. After Hughes the new Chief Judge Harlan F. Stone, who had been elevated in 1941, established a strong record on civil liberties with exception of the Japanese internment and relocation.


Even though the Federal Reorganization of the Courts was defeated, FDR had gained the “upper hand” on what he and others called the “Nine Old Men of the Court.” Van Devanter, Sutherland, Butler, resigned and change came. The Courts started a trend of political activism that gave the federal government more power, encouraged civil rights and civil liberties, and empowered labor regarding its ability to organize. This trend accelerated during the late 1950’s and 1960’s during the Warren Court. Issues as: The Establishment Clause, One Man One Vote, Choice, State’s Rights, Brown v. the Board of Education, (segregation), the Pentagon Papers, privacy and freedom of expression. Today the with the appointment of Samuel Alito, the balance of the Supreme Court may have shifted much further to the right then at any time in the last 73 years. Is this a problem for the America we know? Will the appointments of Roberts and Alito bring is back to an era of “strict contructionism” that attempts to frame court decisions in the most narrow range of the “Framers of the Constitution?”


I have made copies of some dramatically differing views on the subject of Samuel Alito and John Roberts and their elevation to the Supreme Court


1)      The United States Supreme Court: restrain vs. activism by Rory Leishman, Catholicinsight.com

2)      The Democrats and Alito’s Supreme Court Confirmation by Joe Kay World Wide Socialist Web Site

3)       Statement on the Nomination of Judge John Roberts Congressman John Conyers, D-Mi

4)      Bush-Roberts Transcript – courtesy of the Associated Press

5)      Planned Parenthood Hudson Peconic Opposses John Robertswww.plannedparenthood.org

6)      Nominee’s Missing thesis recovered– Chanakya Sethi, dailyprincetonian.com



Therefore to frame our discussion this morning I would like to pose a few questions to the audience. Please note the following:


1)      Should the Court stop being “Activist” with regards to the thinking of the Bush Administration?

2)      Has the Court gone too far in interfering with the Congress?

3)      Should the Court interpret the Constitution with “strict” or “loose” construction?

4)      Should the Court allow the States more freedom when it comes to their right to regulate the conduct of their citizens?

5)      Should the Federal government be limited in using its power of federal grants to cause the states to self-regulate? (Highway trust fund)

6)      Have the Courts gone too far in interfering with the States right to redistrict Congressional and legislative districts?

7)      Should Justices be appointed for life?

8)      Are Congressional hearings on judicial confirmations useful or are they just a “big show?” Is the public educated?



With all of the above in mind, what are your opinions on the following issues that may come up in front of the Supreme Court?


1)      An unlimited right to an abortion on demand!

2)      Parental or spousal notification with regard to an abortion.

3)      Freedom of expression that could include the use of any type of language without censorship.

4)      The sanctity of the United Sates Flag, should it be protected from desecration?

5)      The right of “Eminent Domain” with regard of the taking of private property for a private developer

6)      The unlimited rights for protection against “search and seizure”

7)      The right of political expression in a mall or on quasi private/public property, a park or the sidewalk

8)      The placing of the Ten Commandments in a Court House, the “Establishment Clause,” or the separation of church and state, religious icons on public property



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