Leading Authority on Civil Rights Speaks at USC Law

Geoffrey Stone of University of Chicago delivers inaugural Allen Neiman and Alan Sieroty Lecture in Civil Liberties  

-By Gilien Silsby

Left To Right: Alan Sieroty, Geoffrey Stone, Robert K. Rasmussen and Allen Neiman

Geoffrey Stone, a University of Chicago law professor and one of the nation’s leading authorities on constitutional law, delivered the inaugural Allen Neiman and Alan Sieroty Lecture in Civil Liberties to a packed audience of USC Law students, faculty, alumni and friends.

Known for voicing a vigorous defense of civil liberties, Stone spoke on “The Framers’ Constitution: Toward a Principled Approach to Constitutional Interpretation” at USC Gould School of Law on February 22, 2012.

“For our inaugural lecture, we couldn’t have done better – Geof Stone has been the country’s leading defender of civil liberties,” said USC Law Dean Robert K. Rasmussen, who was a research assistant to Stone as a law student at University of Chicago.

Endowed by Alan Sieroty ’56, a former California state senator and assemblyman, the Alan Sieroty and Allen Neiman Lecture in Civil Liberties, is named in honor of Sieroty and his classmate, Allen Neiman ’56. The lecture was established this year to bring some of the country’s most respected scholars to the USC Law to address civil liberties issues.

In his talk, Stone discussed the responsibility U.S. Supreme Court justices have in construing the Constitution. He compared how the current, conservative Roberts Court and the liberally minded Warren Court have engaged in judicial activism in their approaches to decisions.

“People think that liberals make up the Constitution as they go along to import their own personal values and ideologies into the Constitution in ways that are illegitimate,” he said. “And conservative justices apply the Constitution as written - they strictly construe the Constitution and faithfully undertake what the Framers themselves meant for the Constitution. I want to unpack and debunk this conventional wisdom.”

Stone argued that the Warren Court of the 1960s was more principled in its approach to constitutional interpretation than the Roberts Court.

“The Roberts Court has exhibited a pattern of a highly ideological use of judicial activism that protects powerful groups in society who may not need the power of courts to protect them,” Stone said.

The Warren Court, on the other hand, interpreted the Constitution in a way that protected the rights of the oppressed, the powerless and the disadvantaged. The Warren Court’s approach to constitutional interpretation focused on those circumstances where judicial review was most necessary to preserve constitutional liberties and limitations. For example, it ended racial segregation and protected the rights of religious and political dissenters and persons accused of crime.

In contrast, the Roberts Court has invoked judicial activism to “invalidate affirmative action, gun control laws, laws that regulate corporate expenditures in the political process, and laws that regulate commercial advertising.” These are “activist decisions in the name of politically conservative values,” Stone said. ”Both judicial liberals and judicial conservatives are both activist and restraint. The key difference is in the issues on which they employ judicial activism.”

He pointed to other examples in American history where this argument proved true. During the Lochner era in the early 20^th century, a conservative U.S. Supreme Court engaged in aggressive judicial activism in interpreting the liberty of contract to invalidate 150 pieces of progressive legislation, including minimum wages, maximum hours, health and protective legislation, Stone said.

“During that era, the liberals maintained that judicial activism was illegitimate and said that a bunch of conservative activists were smuggling their own personal preferences and ideologies into the Constitution and illegitimately frustrating the progressive majority,” he said. Progressives, such Louis Brandeis and Felix Frankfurter, “were strong advocates of judicial restraint. Their view was that courts should defer to the outcomes of the political process and should intervene only when absolutely necessary.”

Thoughtful constitutional interpretation requires judges to exercise judgment and consider text, history, precedent, values, changing social, economic, technological and cultural conditions, and the practical realities of the times, Stone said.

“At present, we have a group of justices on the Supreme Court who tend to apply the Constitution to suit their own personal preferences… When you lay it all down together you can see the pattern quite clearly.”

Courts must have the authority to invalidate acts of the elected branches of government, “not so they can pursue conservative or liberal agendas, but so they can serve as an essential check to protect the rights and liberties of the powerless and the disenfranchised,” Stone said, not to protect the interests of corporations and the National Rifle Association when they don’t win in the political process.

“This concern with invoking the Constitution most actively to protect those without the capacity to protect themselves was central to much of the work of the Warren Court and it has long been central to the progressive understanding of constitutional law,” he said, adding that it is distressing that the American public has bought into the fiction that liberal justices are irresponsible activists, while conservative justices are modest, restrained, and principled. The real challenge is to correct this conventional wisdom.”

A new civil liberties issues lecture series that will bring some of the country’s most respected scholars to the USC Gould School of Law has been endowed by Alan Sieroty ’56, a former California state senator and assemblyman.