Another Perspective

Conservative Judges, Liberal Crisis

Democrats court disaster when judges aren't liberal.

By 8.8.07

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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.

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).