CHAPTER ONE
RADICALS IN ROBES
“The American people will never be able to regain democratic self government—and thus shape public policy—until we curb activist judges.”
Edwin Meese III,
attorney general of the United States under President Ronald Reagan1
America’s founding fathers had a clear and profound vision for what they wanted our federal government to be. They created a republican government strong enough to protect and nurture the young nation but, at the same time, one limited in scope and size so that it could not squelch states’ prerogatives or stifle their citizens’ liberty. The overarching purpose was to prevent the concentration of power in a relative handful of institutions and individuals.
With respect to the federal judiciary, the framers also had definite intentions. They wanted a central court system free from the political pressures of the legislative and executive branches of the government2 with a narrow role and limited authority3—a judiciary that respected, applied, and preserved the rule of law and the principles of popular sovereignty enshrined in the Constitution.
Were our forefathers to view the American federal government of the twenty-first century, I believe they’d be appalled. Activist judges have taken over school systems, prisons, private-sector hiring and firing practices, and farm quotas; they have ordered local governments to raise property taxes and states to grant benefits to illegal immigrants; they have expelled God, prayer, and the Ten Commandments from the public square; they’ve endorsed severe limits on political speech; and they’ve protected virtual child pornography, racial discrimination in law school admissions, flag burning, the seizure of private property without just compensation, and partial-birth abortion. They’ve announced that morality alone is an insufficient basis for legislation. Courts now second-guess the commander in chief in time of war and confer due process rights on foreign enemy combatants. They intervene in the electoral process.
The Supreme Court in particular now sits in final judgment of essentially all policy issues, disregarding its constitutional limitations, the legitimate roles of Congress and the president, and the broad authority conferred upon the states and the people. The Court has broken through the firewalls constructed by the framers to limit federal and, especially, judicial power.
The plain language of the Constitution should govern judges when rendering constitutional decisions. Judicial decisions should not be based on the personal beliefs and policy preferences of a particular judge. Judges are appointed for life because they’re not politicians. And because they’re not politicians, they’re not directly accountable to the people and are not subject to elections. They have a different role, which is to search for answers to the issues presented to them based on what the Constitution and the law compel. They have a duty to approach their responsibilities with restraint. Their decisions carry the weight of law and can have far-reaching consequences. When a judge strays from this obligation, he undermines the very structure of our Constitution, disenfranchises the people, and inserts into law subjective opinions that often lead to inconsistent, illogical, and flawed results. The Constitution defines and establishes the distribution of authority, the structure of government, and the process by which national decisions are to be made.
Generally speaking, judges tend to adhere to one of two philosophies. Too few judges keep their sworn oath to uphold the Constitution. Those who do look to the text of the Constitution and the intent of the framers when deciding a constitutional question, and believe they are bound by them. These judges are known as originalists. Too many judges consider the Constitution a document of broad principles and concepts, one that empowers them to substitute their personal beliefs, values, and policies for those enumerated in the Constitution. They see their role limited only by the boundaries of their imaginations. These judges are activists or non-originalists.
Originalists believe that the powers enumerated specifically in the Constitution are the only powers of the federal government, unless the Constitution is formally amended. Originalists generally interpret provisions of the Constitution (and, when applicable, statutes) narrowly. In other words, these judges attempt to look at the plain meaning of the law. They believe in a clearly delineated separation of powers.
My friend Robert Bork summed it up well when he said that originalism “appeal[s] to a common sense of what judges’ roles ought to be in a properly functioning constitutional democracy. Judges are not to overturn the will of legislative majorities absent a violation of a constitutional right, as those rights were understood by the framers.”4 Moreover, “judges may look to the text, structure, and history of the Constitution, but are prohibited from inventing extra-constitutional rights.”5 “Originalism seeks to promote the rule of law by imparting to the Constitution a fixed, continuous, and predictable meaning.”6
Originalists object to the judiciary grabbing power in the name of advancing a social good or remedying some actual or perceived injustice. To the extent that this framework is compromised, both liberty and the rule of law are jeopardized. The judiciary, operating outside its scope, is the greatest threat to representative government we face today.
A judicial activist, on the other hand, construes the Constitution broadly and rejects some of its provisions outright (or gives them superficial acknowledgment) if they interfere with the desired outcome. In essence, activist judges make, rather than interpret, the law. They substitute their will for the judgment of deliberative bodies. They see their role as “doing justice” or “righting wrongs” when, in fact, they’re doing neither. They’re no more just or wise than the next guy. Judicial activists simply use their high positions to impose by fiat that which should be determined through the democratic process.
Four landmark decisions by the U.S. Supreme Court stand out as examples of the terrible consequences that can arise when activist Supreme Court justices substitute personal policy preferences for constitutional imperatives. The cases of Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, and Roe v. Wade (which I will discuss in a later chapter) are all examples of judicial activism. In these four cases, the Court either ignored the clear mandates of the Constitution in favor of a desired result or usurped legislative authority. These decisions had tragic and far-reaching consequences.
Dred Scott was decided in 1856. It is one of the most infamous cases in American history.7 Scott was a slave whose master, an army surgeon, had taken him to posts in Missouri, Illinois, and what is now Minnesota. When Scott’s master died, Scott was inherited by his widow. But encouraged by white friends, Scott sued for his freedom on the grounds that he had lived so long in free territory.
The questions before the Court were whether Scott was a citizen of the United States with a right to sue in federal court, whether prolonged residence in a free state had made him free, whether Fort Snelling (part of the Louisiana Purchase, now in Minnesota) was free territory, and whether Congress could enact a law that banned slavery in the land acquired in the Louisiana Purchase.8
Chief Justice Roger Taney wrote the majority opinion and ruled that because Scott was not a citizen of the United States he did not have standing to bring suit. Taney argued that when the Constitution was ratified, citizenship “was perfectly understood to be confined to the white race and that they alone constituted the sovereignty in the Government.”9 Thus, blacks were not citizens. The opposite, however, was true, as Abraham Lincoln pointed out in a speech on June 26, 1857. Lincoln cited the dissenting opinion of Supreme Court Justice Benjamin R. Curtis, who showed, “that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free Negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had.”10
In other words, the “facts” Taney used to support his conclusion were simply wrong.
As for Scott’s residence in free territory making him free, Taney rej
ected that argument, but with little explanation. He devoted only one page of his fifty-five-page opinion to the subject.11
On the final point, Taney concluded that the Fifth Amendment prohibited people from being deprived of life, liberty, or property without due process, and because slaves were property, any congressional ban on slavery in the territories of the Louisiana Purchase was unconstitutional because it would be a denial of property without due process.12
But Taney’s ruling ignored Article IV of the Constitution, which, as Professor Michael McConnell (now a federal judge) has pointed out, “vests in Congress the power to adopt ‘all needful Rules and Regulations’ for the governance of the territories, and nothing in the language or history suggests that decisions about slavery are an exception. Under traditional canons of constitutional interpretation, the Court should have given effect to the Missouri Compromise and declared Dred Scott a free man.”13 Taney presumed, in McConnell’s words, “that a statute can be unconstitutional because it violates unenumerated rights,”14 in this case an unenumerated right to slavery. With typical activist flair, Taney overruled Congress’s power to ban slavery in the territories and imposed his own view on the nation.
McConnell quotes Justice Curtis’s dissenting opinion in Dred Scott: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean.”15 This is precisely the problem we face today.
In 1896, in Plessy v. Ferguson, the Supreme Court examined the constitutionality of a Louisiana law requiring railway companies carrying passengers in their coaches to provide equal but separate accommodations for the white and colored races.16 The law was challenged under the Fourteenth Amendment, which prohibits the states from “making or enforcing any law which shall abridge the privileges and immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.”17
The majority, led by Justice Henry B. Brown, upheld the constitutionality of the Louisiana statute. Brown wrote, “We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia.”18
In Plessy, an activist Supreme Court upheld a state law that mandated segregation, and forced a private industry (in this case the railroads) to separate individuals on account of race. By failing to invoke the plain language of the Fourteenth Amendment, the Court inserted its own segregationist version of what was just. Like Dred Scott, the Court’s decision would have terrible consequences. The doctrine of “separate but equal” was the law of the land for the next fifty-eight years, until the Court reversed course in the 1954 decision Brown v. Board of Education.19
In 1944, in Korematsu v. United States, the Supreme Court upheld executive orders (issued by President Franklin Roosevelt) establishing military authority for the forced internment of Americans during World War II.20
The Court’s opinion, only some twenty pages long, was devoid of any legitimate constitutional basis for upholding Roosevelt’s orders. More than 110,000 law-abiding individuals, mostly Japanese Americans and Americans of Japanese ancestry, were removed from their homes on the West Coast, relocated to camps in the interior of the country, and detained without cause. The Fifth Amendment states that “no person shall be…deprived of life, liberty, or property without due process of law.”21 If this wasn’t a violation of the Fifth Amendment, then what is? Rather than applying the clear language of the Constitution, this activist Court simply upheld FDR’s policy. Indeed, the Court dismissively concluded that war demands sacrifices and that certain groups will have to bear certain burdens.22
Given the sheer inhumanity of these decisions, it is difficult to understand why so many regard the Supreme Court as the most moral and just of the three branches of government. These cases are crucial to understanding the danger inherent in judicial activism. When the judiciary utilizes outcome-determinative reasoning, rather than adhering to the Constitution, the result can be catastrophic. Activist Supreme Courts have justified slavery, segregation, and racism. They helped precipitate the Civil War and set back race relations for more than a century. But instead of learning the painful lessons of the past—that the Constitution must guide their approach to the law—several current Supreme Court justices are no less committed to judicial activism.
Recently, Justice Anthony Kennedy, in a 2003 speech to the American Bar Association, spoke out against federal mandatory minimum-sentencing laws that the courts—and Kennedy—are obliged to uphold: “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.”23
Kennedy again decried the Federal Sentencing Guidelines in testimony before the House Appropriations Committee when he said, “I do think federal judges who depart downward are courageous.”24
This is a remarkable declaration. We have a Supreme Court justice praising judges who violate federal law, and almost no one noticed, and even fewer cared. I doubt Kennedy would be so complimentary about lower court judges—or legislators—defying his Court’s rulings.25
The late Supreme Court justice Thurgood Marshall, when asked about his judicial philosophy, stated, “You do what you think is right and let the law catch up.”26 Marshall deserves credit for his bluntness. Many judicial activists shroud their approach in bogus legal constructs. Marshall didn’t.
When Congress or state legislatures pass laws with which a large segment of the public disagrees, the people have numerous outlets for recourse. They can lobby their representatives, raise funds to run advertisements encouraging their fellow citizens to get involved, organize grassroots movements, participate in voter registration drives, and, above all else, support or oppose candidates for public office based on their viewpoints.
But if the Supreme Court issues a decision holding unconstitutional, say, a federal statute prohibiting partial-birth abortion, as it did in the 2000 case Stenberg v. Carhart, there is precious little tens of millions of citizens who oppose this grievously brutal procedure can do to influence that decision.27 It has been handed down from on high, wrapped in constitutional language by justices who are appointed for life and institutionally immune from accountability.
When judges come between the people and their representatives, they frustrate representative government and poison the body politic. So many of the nation’s most far-reaching and contentious issues are now determined by judicial orders, increasing the public’s cynicism about government and apathy toward voting. And when justices ignore their sworn obligation to uphold the Constitution, they destroy the very rule of law they claim to enforce and undermine their own credibility and legitimacy. But the judicial activists remain undeterred. Indeed, Supreme Court justices are increasingly relying on international law—not the Constitution—to justify their approaches and actions.
Ruth Bader Ginsburg
Justice Ruth Bader Ginsburg, in a speech discussing the 1948 Universal Declaration of Human Rights, which she described as “the foundation document for contemporary human rights discourse,” complained that the U.S. Supreme Court did not have the “same readiness to look beyond one’s shores” as other nations. She said:
The U.S. Supreme Court has mentioned the Universal Declaration of Human Rights a spare five times and only twice in a majority decision…nor does the U.S. Supreme Court note the laws or decisions of other nations with any frequency.
She continued:
When Justice Breyer referred in 1997 to fed
eral systems in Europe, dissenting from a decision in which I also dissented, the majority responded: “We think such comparative analysis inappropriate to the task of interpreting a constitution.” In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities and other disadvantaged groups.28
Ginsburg has written that “a too strict jurisprudence of the framers’ original intent seems too unworkable.” She added that adherence to “our eighteenth-century Constitution” is dependent on “change in society’s practices, constitutional amendment and judicial interpretation.” She later remarked that “boldly dynamic interpretation departing radically from the original understanding” of the Constitution is sometimes necessary.29
Anthony Kennedy
Kennedy referred to international standards when examining Texas sodomy laws in the 2003 case Lawrence v. Texas:
The sweeping references by Chief Justice Burger to the history of Western civilization and the Judeo-Christian moral and ethical standards [in a 1986 Supreme Court case, Bowers v. Hardwick] did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967 § 1. Of even more importance, almost five years before Bowers was decided, the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights.30
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