Conservative Judge Raps Supreme Court Majority

Yes, Virginia, there are true conservative judges who believe in judicial restraint and do not pursue a radical right activist agenda. Ninth Circuit Judge John T. Noonan, Jr. has written a stunning book that concludes that the five member conservative majority on the Supreme Court "as the devotee of dignity and the hitchhiker of history, has embraced with mistaken enthusiasm a doctrine of state immunity that is overextended, unjustified by history, and unworkable in any consistent way." Noonan, Narrowing The Nation's Power (U. Cal. Press 2002).

Judge Noonan is generally regarded as a conservative, but as his book demonstrates, out of the tradition of such conservatives as the second Justice Harlan and Justice Powell, combining a concern for individuals with a philosophy of limited judicial intervention in public affairs.. It is his reputation as a conservative that lends power to his book.

The New York Times Book Review Section printed a featured review on August 18, 2002, p.8, and followed with an editorial (Aug. 21) characterizing Judge Noonan as "arguing that the court's conservatives are actually engaged in a huge power grab, under the banner of respect for the states, that seriously erodes the rights of ordinary Americans." Ever hopeful, the Times wishes that the majority "chastened by this persuasive critique from a fellow conservative, could start practicing some of the restraint, and respect for the meaning of the Constitution, that it likes to preach."

The book emphasizes two topics: sovereign immunity and Congressional Authority to legislate under the 14^th Amendment. It also touches on the scope of the Commerce Clause in the chapter "Gang Rape at State U.," discussing the Morrison case. There are many quotes that will be useful to advocates in presentations to the public and arguments to the lower federal courts. Citation of the book in the U.S. Supreme Court may be ill-advised at the moment.

Selected quotations from Judge Noonan's book are available to public interest advocates who subscribe to the Federal Rights E-mail Discussion Group. To join the group, send an e-mail to Christy Ross.