Supreme Court’s Activism

In his article, “Conservative Rehnquist Court Unmasks Its Naked Activism” (Commentary, May 7), federal Judge Stephen Reinhardt has burdened legitimate jurisprudential discourse with an imprudent polemic against the Supreme Court and Chief Justice William H. Rehnquist. The danger that respect for the federal bench might mislead some into taking Reinhardt’s extra-judicial editorializing seriously compels this response.

Judge Reinhardt’s diatribe is directed at two recent criminal cases decided by the Supreme Court, Arizona vs. Fulminante and McCleskey vs. Zant. The Supreme Court’s decision in Fulminante simply permitted consideration of whether the erroneous admission of a confession actually affected a trial’s outcome. This harmless error doctrine has been applied to most trial errors since it was announced in 1967 (by the Warren Court). The narrow scope of the court’s decision is made plain by the fate of Mr. Fulminante; the court reversed his conviction based on the view that the admission of a coerced confession was not harmless. The decision is hardly the stuff of which police states are made.

Reinhardt’s attack on the McCleskey decision does not have even the benefit of descriptive accuracy. McCleskey involved habeas corpus, tagged by Reinhardt as “the Great Writ.” The version of habeas corpus that “dates back to the time of the Magna Carta” certainly deserves that title. It authorized the courts to release anyone whom the sheriff had seized without legal authority. But that is not the writ of habeas corpus as it stands today.

The modern writ serves not simply to protect against unlawful confinement, but also gives prisoners the opportunity to ask a federal court to second-guess the state courts on a multitude of alleged trial errors.

Apparently irrelevant to Reinhardt is what the court actually decided in McCleskey: A prisoner should present in his first habeas corpus petition all of the claims then known to him. Failure to do so makes a successive petition, in the words of a federal statute, an “abuse of the writ.” Reinhardt would have the public believe that a convict is barred from bringing a second habeas petition “even though he was (at the time of his first petition) unaware of the critical facts because the government had deliberately concealed them from him.” Not so. The court said exactly the opposite: A second petition is available where the convict has good cause for failing to raise a beneficial claim earlier.

Reinhardt offers no criticism of the legal analysis in Justice Kennedy’s opinion for the court in McCleskey. Instead, his objection is that the court adopted a rule that had been endorsed by the chief justice but not passed by Congress. Reinhardt apparently would prefer that the court simply decline to resolve the dispute in the lower federal courts concerning successive habeas petitions and the doctrine of “abuse of the writ.” But the court had a responsibility to decide the case before it on the basis of the laws and principles at hand.

Reinhardt appears to have no interest in addressing the decision on those terms. His real interest is in a broader political point: that the court is engaged in judicial activism. Long thought to be a virtue by Reinhardt and those of his persuasion, judicial activism is now leveled as a damning charge against judicial conservatives by those whose activism served their liberal purposes for so long. But the charge rings hollow; a return to principled decision-making in the face of decades of judicial legislation is no activism.

When confronted with a decision that has no basis in law, in reason, or in common sense, a justice has an obligation to carefully consider whether past mistakes should be corrected. That is what the Supreme Court did in McCleskey and Fulminante.

DAN ERAMIAN

Spokesman, Department of Justice

Washington, D.C.