Judicial review, judicial activism, and judicial selection
With the retirement of Madame Justice O’Connor from the bench, we face the near-certain prospect of a nasty, prolonged fight in the Senate and the media over her successor. Terms like ‘extremist’ and ‘out of the mainstream’ will doubtless be hurled, and senators and pundits will praise or condemn the nominee for how he has ruled on past cases or might rule on future cases. It seems to me wise to keep in mind what the duty of a Supreme Court justice is, and how various groups believe a person ought to discharge that duty.
The Constitution discusses the courts, including the Supreme Court, only briefly. In Article III, section 2, it states that:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State [modified by the 11th Amendment];--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Neither the explicit term or concept of judicial review appears in the Constitution. This awesome power, by which the courts can declare unconstitutional and thus void an act of the legislature, a directive of the executive, or a popular referendum, was determined to logically exist by the Marshall court in the case Marbury v. Madison (1803). Citing not only precedent English law but also the common concept of the function of judge and court, Mr. Chief Justice Marshall wrote:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
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Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.
Unfortunately, determining what the law is seems to be more difficult for some than for others, or (less charitably) some seem to feel that they have much more latitude to interpret the law than do others. This is the fundamental difference between an 'originalist' and one who believes that the Constitution is a 'living document.'
Mr. Justice Scalia defined the distinction between the two schools of thought quite well in his remarks before the Manhattan Institute on November 17, 1997:
Once upon a time The Constitution was regarded by all Americans as containing two characteristics. Number one, it contained a limited number of guarantees.
They were set forth, a few of the personal guarantees, in the text of the document. Most of the personal guarantees in the Bill of Rights.
And there they were. They were recited. But it was a closed set.
Number two, those guarantees that were contained in The Constitution did not change. The Constitution was that rock to which the society was anchored and which it could always rely upon. It did not change.
That view of The Constitution is a thing of the past. Among Judges, among lawyers, and worst of all, among the American people. The new view of The Constitution is encapsulated in the hateful phrase, the Living Constitution.
It is a document that morphs from decade to decade so as to be the embodiment of the most profoundly held beliefs of society. From decade to decade. Never mind what beliefs it recites in its text. Never mind what beliefs the people who wrote that text happened to have. What it consists of now is an empty bottle which we feel free to fill up with whatever liquid seems to us passionately desirable.
One might argue that a 'living' Constitution is eminently sensible. After all, the problems and issues we confront in 2005 are often quite different than those confronted by the American people and their government in 1787. Further, our national opinion of what is right and wrong has changed. For example, many Americans in 1787 thought that slavery, denial of suffrage to women, and child labor were acceptable practices. In 2005, it would be difficult to find an American who thinks so. Additionally, the Bill of Rights is not all-inclusive. Americans have many rights they take for granted that do NOT appear in the Bill of Rights or subsequent amendments. Is it not reasonable for a judge, in discharging his duty of determining what the law is, to consider the various unenumerated rights that Americans have traditionally enjoyed?
Changing societal standards and the protection of unenumerated rights lies at the heart of several well-known Supreme Court decisions from the past six decades... which I believe represent well-intentioned but ultimately harmful judicial activism. In the case Brown v. the Board of Education of Topeka, KS (1954), the Mr. Chief Justice Warren wrote for the majority that:
We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
We are taught in public school to regard Brown as one of the landmark cases in American legal history and to revere it for striking down the odious practice of segregation in schools. However, the Constitution touches only very tangentially on the central issue of the case, which is whether or not segregated schools are in fact a violation of the equal protection clause of the Fourteenth Amendment. The Court itself recognized - disingenuously, I think - that the history of the amendment did not cast much light on the matter:
Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive.
Claiming that historical guidance regarding the amendment itself was lacking, the Court next examined the evolution of American public school education. It found that the concept and practice of state subsidized and -mandated public school was of fairly recent vintage, certainly not as old as the Fourteenth Amendment itself. Despite the fairly lengthy discussion of the history, the Court discarded it in favor of how it existed in 1954:
In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation.
The Court finally substituted its own concept of right and wrong to help make its decision:
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
While we must applaud the humanity of the Court in reaching this decision, it seems to me that we must also condemn its method and reasoning. Public education was not a 'right' at the time of the writing and ratification of the Constitution, nor at the time of the writing and ratification of the Fourteenth Amendment. Even today, it is considered a requirement that the states put on children for the greater good of society. Therefore, regarding it as a 'right' to which anybody is entitled to equal protection seems to me to be a gross abuse of judicial power.
One of the worst abuses of judicial power came with the 1973 Roe v. Wade decision, in which the Court made up a new right from whole cloth, i.e. the right to privacy, which appears nowhere in the Constitution. Mr. Justice Blackmun wrote the majority opinion. It becomes immediately apparent that the Court was not considering the case strictly on its legal and constitutional merits, but on other factors:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. [emphasis mine]
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The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
I fail to see what possible bearing the history of abortion, pollution, racism, or any of the other factors mentioned by Mr. Justice Blackmun should have had on the ruling. The core issue is this: did the Texas state law prohibiting abortion except in cases where the mother's life is in jeopardy violate Jane Roe's constitutional rights? I believe that it did not.
Mr. Justice Rehnquist entered the only dissent. He wrote:
I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.
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The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
By establishing the right to abortion by judicial fiat, the Court did not solve a problem that was being debated in American society in 1973. Rather, it exacerbated it. The entire American system of government is built on the idea that the majority rules, but also that, with the passage of time, new majorities can undo what old majorities have done (for example, prohibition). In the Roe decision, the Court bypassed the democratic process. For those who do not agree with the Roe decision, the right to an abortion is highly illegitimate because there was never an opportunity for the people, through their elected officials, to register their opinion.
This is 'judicial activism' at its worst: the imposition of the moral values of a tiny number of judges, who are not accountable to the people, whose rulings affect the entire country despite the wishes of state and local governments, and which cannot be easily overturned.
Unfortunately, some judges and even Supreme Court justices believe that they can look even outside American law and legal precedent for support for their rulings. On January 13 of this year, Mr. Justice Scalia and Mr. Justice Breyer had a discussion about the role of foreign law in constitutional interpretation before the US Association for Constitutional Law Discussion. Breyer said:
... first, of course, foreign law doesn't bind us, constitutional law. Of course not. But these are human beings, more and more, called judges, who are human beings despite concern about that matter -- (laughter) -- human beings, called judges, who have problems that often, more and more, are similar to our own. They're dealing with this certain texts, texts that more and more protect basic human rights. Their societies more and more have become democratic, and they're faced not with things that should be obvious -- should we stop torture or whatever -- they're faced with some of the really difficult ones where there's a lot to be said on both sides. Hard to decide.
Mr. Justice Scalia took him to task for this:
But if you're looking for the evolving standards of decency of American society, why would you look to France? The only way in which it makes sense is if you have a third approach to the interpretation of the Constitution, and that is I am not looking for the evolving standards of decency of American society; I'm looking for what is the best answer in my mind as an intelligent judge. And for that purpose I look to other intelligent people, and I talk sometimes about conversations with judges and lawyers and law students. Do you think you're representative of American society? Do you not realize you are a small cream at the top, and that your views on innumerable things are not the views of America at large? And doesn't it seem somewhat arrogant for you to say, I can make up what the moral values of America should be on all sorts of issues, such as penology, the death penalty, abortion, whatever?
When the president makes his decision about who he wants to appoint to the Court, I hope that he will give careful consideration to whether or not the nominee has an 'originalist' view. There is simply too much room for abuse by judges and justices who do not regard the Constitution as a fixed document and the supreme law of the land, but rather as a 'living' document upon which they can write their own opinions.
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