Judges are supposed to be liberals. Modern, big government
liberals, not classical, individualistic liberals. But the current
Supreme Court, complains Sen. Chuck Schumer (D-N.Y.), is “the most
conservative in memory.” It is “dangerously out of balance.” Sen.
Schumer is horrified that the Supreme Court justices are no longer
promoting the usual left-wing political agenda.
What to do? The Senator declares that no additional Bush Supreme
Court nominees should be confirmed “except in extraordinary
circumstances” (presumably meaning that Laurence Tribe gets the
nod).
Sen. Arlen Specter (R-Pa.), the prototypical Republican in Name
Only, also is upset. In late July he announced his intention to
review the testimony of Chief Justice John Roberts and Associate
Justice Samuel J. Alito at their confirmation hearings. He doubts
they “lived up” to their promises to respect legal precedents —
that is, to preserve the liberal state created by past liberal
jurists. Senate Majority Whip Richard J. Durbin (D-Ill.) suggested
more thorough questioning of future nominees, since Justice
Roberts’ performance “has been in conflict with many of the
statements he has made privately, as well as to the committee.”
Another option being advanced by the left is to simply pack the
Court with pliant nominees. Urges Jean Edward Smith of Marshall
University: “If the current five-man majority persists in thumbing
its nose at popular values, the election of a Democratic president
and Congress could provide a corrective.” Just add another justice
or two, as proposed by Franklin Delano Roosevelt. (Of course, no
commitment to precedent would be necessary at the confirmation
hearings of these Democratic nominees.)
Washington is rife with awful arguments, shameless demagoguery,
and flagrant hypocrisy, of course. But Smith’s concern lest “a
majority of Supreme Court justices adopt a manifestly ideological
agenda” and plunge “the court into the vortex of American politics”
is almost too hilarious to repeat. Apparently the Warren and Burger
Courts were merely following popular values when they overturned
decades and even centuries of precedent to transform sizable areas
of constitutional law. When they turned the law into a matter of
judicial preference rather than constitutional interpretation, they
presumably did so in a nonideological and nonpolitical fashion.
The courts rewrote legislation involving abortion, welfare,
racial discrimination, busing, law enforcement practices, church-
state relations, private property seizures, and much more. Most of
these cases involved the Supreme Court ruthlessly overriding
popular preferences and democratic choices. In fact, that’s what
the courts are supposed to do — when the Constitution mandates
that they do so. But modern liberal judicial philosophy is quite
different: intervene whenever necessary to promote modern liberal
values and policies. Reject judicial intervention whenever
necessary to promote modern liberal values and policies.
No wonder those on the left are so upset with the Roberts Court.
It sometimes acts as if constitutional provisions and legislative
enactments should be interpreted as written and understood by those
who enacted them. How antediluvian. How outrageous. How
un-liberal!
CONSERVATIVE ACTIVISTS WHO DENOUNCE any judicial activism in the
name of interpreting the Constitution also don’t have it right. The
problem is not judicial activism per se, but whether the
Constitution is being properly interpreted.
In some cases, the nation’s fundamental law demands that the
courts act to implement its provisions. For instance, barring
government from taking land except for a public use has no meaning
if judges don’t actually determine whether a particular taking is
for a public use, and, if not, override the government’s decision
even if reached democratically. Vindicating the First Amendment
means voiding laws backed by a popular majority if they violate the
liberties protected.
Fidelity to the Constitution often means judges refusing to act,
even if they doubt the wisdom of a particular executive or
legislative policy. But honest judging requires jurists to
intervene in other cases, even where they might support the law or
practice at issue. As Founder James Madison explained, the
judiciary was to be “an impenetrable bulwark against every
assumption of power in the Legislative or Executive.”
Judicial philosophy obviously matters. Here the right long has
gotten the argument much more correct than the left. Conservatives
can and do argue about exactly what “original intent” should
constitute — I believe that constitutional and legislative
provisions must be understood in terms of the political compromises
from which they sprang. What did the voters and ratifiers as well
as drafters believe to be true? That may not always be easily
discoverable, of course. Nevertheless, constitutional (and legal)
understandings must be rooted in what the provisions meant when
enacted. Otherwise there is little to prevent courts from becoming
mini-legislatures, enacting their preferences through shameless
sophistry disguised as judicial opinions.
Learned liberal treatises on jurisprudence abound, justifying
judicial activism on behalf of any number of ends. But all of these
arguments lead to the same basic result: a much-expanded state
built on the tenets of modern liberalism. Once the official meaning
of law is cut loose from what its specific provisions were
originally expected to mean, the only restraint on judges is their
personal temperament. If the Constitution means what judges say it
does, it means nothing at all. A court that can eviscerate the
property takings clause, for instance, can eviscerate the First
Amendment guarantees for free speech and religious liberty, and the
Fourth Amendment’s bar on unreasonable searches and seizures.
Although unbridled judicial activism is an unsatisfactory
jurisprudential principle, the left has nowhere else to go because
the Constitution is fundamentally, though not purely, a
libertarian-conservative document. The nation’s basic law is meant
to constrain politics, to put many issues, centered around an
expansive and expensive national government, out of bounds of the
democratic process. In short, to be a liberal and believe in
original intent is to be eternally frustrated.
After all, as Georgetown University Law School Professor Randy
Barnett points out, the Constitution is best understood as
establishing islands of government power in an ocean of individual
rights. The former are not unimportant and the latter are not
unlimited, but a fair reading of the Constitution yields a limited
national state that accords high value to civil, economic, and
political freedoms. The under-appreciated Ninth as well as Tenth
Amendments compel this conclusion.
Douglas T. Kendall of Community Rights Counsel and James E. Ryan
of the University of Virginia Law School rightly point out in a
recent New Republic article that the Civil War altered the
Constitution. Indeed, one can speak of America having two
constitutions. Write Kendall and Ryan: “A federal government that
began with powers that were ‘few and defined’ was awarded vast new
powers to protect due process and equal protection. Conservatives
may not like this, of course, but they should not be able to wish
away these changes.”
The post-Civil War amendments obviously expanded federal
authority, but most obviously vis-a-vis the states, and for the
purpose, most particularly, of ensuring that the newly freed slaves
would be protected in the exercise of their traditional liberties.
These amendments were not intended to provide the foundation for
the 20th Century welfare/redistributionist/nanny state. Indeed, via
the doctrine of “incorporation,” that is, the application of the
Bill of Rights to the states, backed by contemporaneous evidence
indicating that supporters of the provisions desired this result,
the post-Civil War amendments applied the Constitution’s most
explicit limitations on — authorizations of — federal power to
states as well.
SO THE PROBLEM RECURS: How to create a liberal state via judicial
interpretation when the nation’s basic document bars creation of
much of that state? This conundrum helps explain why the left seems
even more oriented than the right towards results-oriented
jurisprudence. This dilemma also explains liberal angst over
preserving “precedent.” Sen. Specter is upset about the abandonment
of precedent not because he is concerned about stability in the
law. All of the decisions which he seeks to preserve, most notably
Roe v. Wade, upset prior decisions and settled law.
Rather, he emphasizes precedent because he wants to preserve more
recent court decisions ratifying the modern liberal state.
Even more so, leading Democrats fear that a more conservative
court will dismantle the jury-rigged judicial justification for so
many of today’s expansive state. They talk precedent because that
is their best argument to use against conservatives. Should
liberals install a firm left-wing majority on the Supreme Court,
all talk about precedent would instantly vanish. The discussion
would suddenly turn to the importance of judges vindicating the
rights of those, namely liberals, who feel denied a fair
opportunity to impose their agenda through the political
process.
Should the Senate rigorously assess the qualifications of
presidential nominees to the U.S. Supreme Court and the rest of the
federal bench? Of course. Judges should have the temperament,
integrity, and knowledge necessary to render impartial,
well-reasoned, and fact-based decisions.
Moreover, their jurisprudence should base interpretation on
fidelity to the meaning of the text when proposed, drafted, and
enacted. The underlying political compromise will not always be
obvious, and good people can differ in the application of even
clear principles to complicated factual situations. Nevertheless,
holding a result-based jurisprudence, whatever the particular end,
should be grounds for rejection.
With the addition of Justices Alito and Roberts, the current
Supreme Court has become more conservative. But left-wing activists
have little credibility to complain, having thoroughly politicized
the courts for decades. Today’s conservative jurists still get a
lot wrong, but almost any conservative jurisprudential philosophy
is better than the result-oriented theories advocated by leading
Democratic lawmakers.
