Sunday, March 20, 2005

The Imperial Presidency: Who Will Rid Me of These Meddlesome Courts

The fundamental problem with charges of "judicial activism" is that it is in the eye of the beholder. Judicial activism is understood to be the court making decisions not based on law or the constitution but rather creating new law from the bench. So say the Supreme Court strikes down a law as unconstitutional based on what they claim to be solid constitutional grounds. If you agree with the decision that it isn't judicial activism. If you disagree, then by definition it is.

If the first mistake of the today’s critics of “judicial activism” is to say that all wrongly decided cases are by definition legislating from the bench, the second mistake is to see correcting old wrongs as discovering new rights.

It should tell us something that the Right is fearful of a constitution that guarantees equal protection under the law and an honoring of contracts across state lines – that these are the very provisions in which they finds danger. It should tell them something about themselves.

One of the more popular tropes circulating in conservative circles these days is that the constitution is under assault by "unelected radical activist judges" who are willfully ignoring their constitutional limits and are creating new law from the bench. The recently decided Roper v Simmons, which ruled that minors could not be executed drew the usual round of conservative ire. Much of the criticism from the right centers on a reference in Justice Kennedy's opinion to international consensus, noting that the US is the only nation left in the world that allows the execution of minors.

That was enough to send conservative critics into orbit. Some went to far as to see this as a precursor of a one world government.
If the Supreme Court continues to use international treaties and declarations as its guide, having assumed a position of practical absolute authority, the United States will have foreign authority foisted upon it through the back door.

The phrase "cruel and unusual" is of course subject to interpretation. Every generation must approach it anew and hopefully with more mercy and humanity than the last. We now are in a good position to know that the minors are physiologically less capable of appreciating consequences to their actions. That part of our brains is the last to develop. (For this reason, the chances of someone starting smoking past the age of 18 is remote.) I understand that it is in the conservative nature to conserve, but the 21st Century awaits folks. It was on this knowledge and the fact that only a minority of states allow execution of minors that the decision was based.

Were I a Supreme court judge, I'd also want to add that it is a well established matter of law that minors are treated less severely because they are less able to understand their actions. The execution of minors and the whole practice of trying minors like adults is a product of unfounded hysteria about out of control crime and the supposed incentive to involve minors in crime due to their status in the criminal justice system.

None of that is really necessary though. The Supreme Court found a perfectly legitimate constitutional basis to make their ruling, in my opinion. And there of course is the rub. If you don't agree with the opinion it looks quite differently. And here we find the central problem with charges of "judicial activism". Judicial activism is understood to be the court making decisions not based on law or the constitution but rather creating new law from the bench, based on personal opinion. So, say the Supreme Court strikes down a law as unconstitutional based on what they claim to be solid constitutional grounds. If you agree with the decision, that it isn't judicial activism. If you disagree, then by definition it is. Agreeing with the decision means that you agree that the court was within its constitutional and legal boundaries.

Take for example the odious 1986 Bowers v Hardwick ruling. Even though the court upheld the law in question, it helps to illustrate some of the complexities of the problem. Firstly, we note that the President, the Congress and state governments are all equally bound by the US Constitution. And the state governments are additionally bound by their state constitutions. But the legislatures do not always act within the bounds of the constitution. In fact we might argue that they often intentionally step outside the constitution knowing that their laws will be overturned eventually, but also knowing that it will take some time for a challenge to arise and work its way through the courts. They also know that the courts operate on the presumption of the correctness of legislatures and that it is incumbent on the challenger to prove otherwise.

In this case the Georgia sodomy law that Michael Hardwick was arrested under was in clear violation of the constitution. Laws that in statute or practice only apply to a subset of the population violate the equal protection clause of the 14th amendment. This is precisely the finding of 2003’s Lawrence v Texas which overturned Bowers v Hardwick and all states' sodomy laws.

Bowers overlooked the equal protection problems and instead found that the courts could only act in the protection of rights not specifically enumerated in the constitution when those rights are "implicit in the concept of ordered liberty" or "deeply rooted in the Nation's history and tradition." In support of their argument, they cited a long history of the legal abuse of gay people - although they didn't phrase it quite that way.

This was, IMHO, judicial activism by acquiescence. They allowed the states to violate the constitution. Seventeen years later, the court would agree with me. This in turn, points to the fact that as social customs change, so too do the meanings of phrases like "equal protection", "due process" or even "cruel and unusual punishment."

Prejudice, intolerance and fear can blind us to injustice. A more enlightened age can make legal inequality less opaque. It isn’t just that we change our minds about things. We come over time to see what we hadn’t been able to before.

If the constitution wasn’t able to adapt to this, our nation would have disintegrated long ago. So if the first mistake of the today’s critics of “judicial activism” is to say that all “wrongly” decided cases are by definition legislating from the bench, the second mistake is to see correcting old wrongs as discovering new rights. Standards evolve because understanding evolves. In Bowers, the court looked into the constitution and found no specific “right” for consenting adults to have sex in their homes with whom they please. But the constitution is not a bill of particulars.
It is a statement of principles. As such, the constitution demands that the courts apply these principles to specific cases. In doing so, new and previously unimagined controversies will inevitably bring new and previously unimagined applications of the constitution. The crowd calling themselves “strict constructionists” are lost in the words and so have lost the meaning.

Because this issue can cut both ways, I turn to support from no less than the Heritage Foundation and the Federalist Society.

From: A Case for Principled Judicial Activism
The federal courts have a responsibility to determine whether or not legislative actions are constitutionally within the power of Congress. A court also looks to the rights-protecting provisions of the Constitution to define the legitimate power of government. Because our Constitution contains an enumeration of these rights guarantees, conservative judges, following the thinking of Robert Bork and others, have expressed concern about the judicial creation of rights which are not expressly guaranteed in the Constitution. But why should we interpret a libertarian constitution to be parsimonious on rights?

From: "Conservative Judicial Activism": More than Whose Ox is Being Gored
The reasoning and results in Morrison and Garrett show the Supreme Court requiring Congress to base its laws in the Constitution, and ensuring that Congress, the Court’s co-equal branch, respects the states. Legal reasoning that could result in truncating a small part of Congress’s power is not activism. It is not second-guessing. It is a check in the balance of the separation of powers. Justices and judges faced with activist legislatures are not required to roll over in the name of judicial restraint. This would leave in place a one-way ratchet of constantly expanding government.

As an aside, the second case referred to in the Federalist Society essay is the 2001 Board of Trustees of the University of Alabama v. Garrett, in which the Supreme Court ruled that the Eleventh Amendment precluded state employees from recovering money damages from Alabama under the Americans with Disability Act ("ADA"). The author bases his support for this ruling on the notion that “the Eleventh Amendment guarantees that a private individual may not sue a nonconsenting state in federal court.” However, the Eleventh Amendment actually states, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It’s more than a little bit of a fudge to construe this to mean that people cannot sue their own states. If it is in fact true that, “the Eleventh Amendment… since 1890 has been interpreted to bar suits by citizens against their own states,” then this is a bit of judicial activism that any “strict constructionist” would surely want to clear up as soon as possible.

And we’re right back in it. I hope you’re beginning to see that the Judiciary is by necessity a policy making body of government. Every decision the courts make involving constitutional issues is going to seem like judicial activism to somebody. There are, however, in our system of government various checks and balances (remember those?) on each branch of government. The courts cannot decide on a matter unless a case is brought to them. They serve at the pleasure of the legislature. They have no enforcement powers.

Federal judges are unelected precisely so that they won’t be subject to political pressures. The majority should not be able to vote the rights of the minority out of existence. But to a public increasingly worried that its “will” is being thwarted, that feels increasingly disempowered, the idea of “unelected” judges having the power to void the decisions of a legislature seems very threatening indeed. The fact that this is how the system was designed and that there are checks on this power is lost in a sea of anxiety.

This tension is not new. Consider the following.

(T)hat inept fraternity of politicians and professors known as the United States Supreme Court chose to throw away established law. (They) repudiated the constitution, spit upon the Tenth Amendment, and rewrote the fundamental law of this land to suit their own gauzy concepts of sociology. If it be said now that (we are) flouting the law, let it be said to the higher court, You taught us how.

We have stated our views that the ... decision by the Supreme Court was an act of judicial usurpation:; that it ran "patently counter to the intent of the Constitution."; that it was "shoddy and illegal in analysis, and invalid as sociology." And we have implied that it is not altogether clear whether a moral issue is at stake. If there is one at stake, it was there before the Supreme Court thought about it; and hence the moral fervor that has been attached to the Court decision itself is unconvincing and, at worse, hypocritical.

The first paragraph came from a column by James J. Kilpatrick and the second came from article in the National Review. Do you know what issue the authors are upset about? Are they attacking court decisions on gay marriage or the Pledge of Allegiance?

Perhaps these are editorials about the Lawrence v. Texas decision that struck down laws against sodomy? Or are they attacks on Roe v. Wade which struck down anti-abortion law? Maybe this is all about Griswold v. Connecticut, which struck down laws that banned the distribution of contraceptives and contraceptive information?

Those are all plausible answers - but they would all be wrong. The right answer is that these were reactions to Brown v. Board of Education which struck down laws mandating racial segregation in public schools.

And yet there is something new afoot. Frustrated by all that “due process” and “equal protection” stuff, the Bush administration is seeking to make an end run around the courts. This has been motivated but what seems to them to be a string of recent “wrongly decided” rulings from the Supreme Court and others.

  • In Grutter v. Bollinger in a 5-4 decision involving the University of Michigan School of Law, the United States Supreme Court upheld the "flexible" consideration of race as one factor among many for admissions to public institutions of higher education.
  • In Lawrence v. Texas, the Supreme Court, in a 6-3 decision, declared unconstitutional a Texas law that prohibited sexual acts between same sex couples.
  • Wilkinson v Dotson held that state prisoners may challenge the constitutionality of state parole procedures; they need not seek relief exclusively under the federal habeas corpus statutes.
  • In Ashcroft v ACLU, the court held that that the Child Online Protection Act probably violates free-speech rights.
  • In Locke v. Davey the court ruled that states do not have to give students preparing for careers in the clergy the same access to taxpayer-funded college aid that other students receive.
  • In Missouri v. Siebert the court ruled that police officers may not deliberately avoid warning suspects of their right to remain silent before questioning.
  • In McConnell v. FEC the court upheld the key provisions of the McCain-Feingold campaign finance law including a ban on "soft money" and rules limiting campaign-season political advertising.
  • In Rasul v. Bush the court ruled that U.S. courts have jurisdiction to consider challenges to the legality of detaining foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay, Cuba.
  • In Hamdi v. Rumsfeld the court ruled that the president has the power to declare U.S. citizens enemy combatants and detain them as such. However, in a 6-3 decision, the court also ruled that Yaser Esam Hamdi is entitled to contest that determination before a "neutral decisionmaker."
  • Tennessee v. Lane the court ruled that private citizens have the right to sue a state for alleged violations of the Americans With Disabilities Act.

To be accurate, it was not as if there were no “victories” for the right in the courts – eliciting cries of “judicial activism” from the left. But this isn’t about keeping score. “Rightly” decided cases are counted as neutral and “wrongly” decided ones as bad.

But the case that really got everyone on the right worked into a tizzy was not decided in the US Supreme Court at all. It was the 2003 Massachusetts Supreme Court decision in Goodridge et al v The Department of Public Health which held, “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.” The court observed that the Massachusetts Constitution "affirms the dignity and equality of all individuals," and "forbids the creation of second-class citizens." The court said, giving "full deference to the arguments made by the Commonwealth." The Commonwealth, the court ruled, "has failed to identify any constitutionality adequate reason for denying civil marriage to same-sex couples."

In other words, they found that denying marriage to same sex couples violated the state constitution. They offered the State an opportunity to show why such a ban is still necessary, why it is needed to overlook the constitution in this way, and the State failed to do so. It is remarkably similar to the reasoning recently used by a California Superior Court in invalidating that state’s ban on same sex marriage. Judges in New York, Vermont and Hawaii have made similar rulings. It’s as if the judicial blinders are coming off across the nation and rational jurists are finding that, yes, gays and lesbian are real people after all. The case in Hawaii was short-circuited by a constitutional amendment banning same-sex marriage but not before kicking off the first round of Defense of Marriage Acts. This primed the pump. The case in Vermont resulted in a civil union compromise. This raised the pressure level. The Massachusetts decision push right-wing anxieties passed the breaking point.

The problem for the right wing strict constructionists is that the US Constitution does not favor their position. The 14th amendment specifies that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;… nor deny to any person within its jurisdiction the equal protection of the laws.” Now, no state is required to offer protection to couples through marriage laws. But to the extent that they do offer legal protections, they need to do so equally. And to the extent that they offer privileges and immunities, they must offer them to all citizens.

True enough, the Right argues that denying same-sex marriage does not violate equal protection. This month another New York State Supreme Court judge ruled that "men and women enjoy equal rights to obtain a license to marry a person of the opposite sex," Mulvey stated. He added that each sex "is equally prohibited from precisely the same conduct, i.e., marriage to a person of the same sex."

It’s all quite similar to the eerily similar and aptly named Loving v Virgina.

In Loving v. Virginia, a white man, Richard Loving, and his black wife, Mildred Jeter, were arrested in Virginia on the grounds that their marriage license from the District of Columbia was invalid and that they had violated the sinister-sounding Racial Integrity Act. They were given a choice of a one-year jail term or exile from Virginia for twenty-five years by the lower court judge, Leon Bazile, who declared: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.... The fact that he separated the races shows that he did not intend for the races to mix." … In his majority opinion for the Supreme Court, Chief Justice Earl Warren ignored the Fourteenth Amendment and argued that the Virginia law violated the equal protection clause and fundamental privacy.
Illinois Republican Senator Lyman Trumbull: "If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either."

The problem is, in their heart of hearts, the Right knows that they have a weak argument and it will not stand. But their problems do not end there. Article Four, Section One of the US Constitution states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This has the Right worried that same-sex marriage cannot be “contained” in the states where it is legal. Never mind that the same section goes on to say, “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Never mind that there is a well established exception to the Full Faith and Credit Clause specifically as applies to marriage. The Right is worried.

George Bush:

Some activist judges and local officials … made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year. … After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization.
The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America.
There is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city. For all these reasons, the Defense of Marriage requires a constitutional amendment.

It should tell us something that the Right is fearful of a constitution that guarantees equal protection under the law and an honoring of contracts across state lines – that these are the very provisions in which they find danger. It should tell them something about themselves.

In a time of great general anxiety, the niceties of constitutional democracy begin to seem like unaffordable luxuries. There is a desire among some of the population to consolidate power in a trusted leader. They want to be able to put the breaks on change. They want to stop feeling so out of control. And they resent like anything those who would say to them, “No, you may not.”

At the end of the day, all this angst over “activist judges”, all this talk about amending the Constitution is about disarming the branch of government whose job it is to stop us from turning on one another in times of fear and anxiety. Judges are supposed to uphold the law. But they owe a higher duty to the principles of government in our constitution. And when legislatures, bowing to political pressure, subvert the constitution, it is not a breakdown in the system for the courts to void unconstitutional laws. That is the system.

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At 9:32 PM, Blogger Jack Mercer said...

Hi Jim, thanks for stopping by the Snipet. This is a well written and thought out article!

I have spoken out against judicial activism for years--not just as a result of the current vogue. The position I come from is one of an accountant (checks and balances) and a former government employee- administrative law judge (conflict of interest). It is not a partisan issue, although it is being made into one. And like you pointed out--it is usually only called "activism" unless it fits one's ideology. A judge only has the authority to make a ruling (decision)based on existing law. When there is no law, then they can't just make one up, precedence aside. Jim, be careful in your support of this, as very advocates of the current trend in judicial activism will one day bear the brunt of it.

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