Tag: judicial activism

Gingrich Agonistes

Today POLITICO Arena asks:

Can Gingrich rein in “judicial activists”?

My response:

As I wrote in the Daily Caller a week ago, Newt Gingrich’s attack on the judiciary in chapter nine of his 21st Century Contract with America is a mass of constitutional confusions. It’s a direct assault on judicial review and on “judicial supremacy,” in particular – the idea that it falls to the courts to say what the law is. Newt would have us believe that that idea was invented by the Supreme Court in its 1958 decision in Cooper v. Aaron, where a unanimous Court told Arkansas officials resisting a school desegregation order that they couldn’t “nullify” a Court decision. But the power of courts to say what the law is far predates that decision. It’s implicit in our written Constitution with its independent judiciary. It was discussed explicitly and at length in the Federalist Papers. And it was secured by the Court in 1803 in Marbury v. Madison.

There’s no question that courts do not always decide cases correctly. That’s why we have review by higher courts, which doesn’t always solve the problem either. But the answer, in an imperfect world, is not to abolish whole circuits, as Gingrich threatens to do with the Ninth Circuit. It’s to have better judges and better judging – plus better education at all levels about our constitutional system, which is too often woefully lacking, even in our law schools. If the errors of this sometime historian contribute to a better understanding of our system, they’ll have served a purpose. But if this is a serious proposal for governing under our Constitution, it’s deeply misguided – and dangerous besides.

What Is Judicial Activism?

Nearly a year ago, I had an engaging debate at Berkeley Law School regarding “judicial activism.”  Of course, as I clarified, the phrase is really just an epithet hurled by someone to describe a legal ruling with which he disagrees. The whole argument about whether a certain judge is “activist,” “restrained,” or anything else is irrelevant: fidelity to the Constitution should be the sole evaluative criterion—and point of debate—regardless of whether that means striking down a law or upholding it, deferring to the legislature or not.

As I said during this debate (which was against a young law professor named Fred Smith),

The purveyors of conventional punditry all miss the larger point.  The role of the judiciary in terms of constitutional interpretation is to fully interpret and apply the Constitution, period.  So, if that means upholding a law, fine.  If that means striking it down, fine.  Activism is doing something that is not supposed to be the judicial role or not being faithful to the Constitution, which is no small task in part because of the doctrinal mess the Supreme Court has made.  Again, whether a particular statute stands or falls is of no moment.  Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint or—as John Roberts put it at his confirmation hearing—modesty: just calling balls and strikes, just being in a kind of modest judicial role.  Again, where you stand on those sorts of debates depends on where you sit.

I can quote this debate because a transcript has been published in the Federalist Society’s journal, Engage.  The current volume has plenty of other interesting articles, including some authored by various Cato-affiliated or -friendly folks.

Thursday Links

  • DON’T FORGET: Our fiscal policy conference, “The Economic Impact of Government Spending,” featuring Senators Bob Corker (R-Tenn.) and Mike Lee (R-Utah), former Senator Phil Gramm (R-Tex.), Representative Kevin Brady (R-Tex.), and other distinguished guests, begins at 2:00 p.m. Eastern today. Please join us on the web–you can watch the conference LIVE here.
  • Atlas Shrugged Motors presents the Chevy Volt.
  • The parable of the Good Samaritan teaches us about the moral value of voluntary charity toward the needy–it says nothing about using coercive government programs of the modern welfare state.
  • It is not the role of the Court to rewrite laws for Congress.
  • The failed “war on drugs” has reshaped our budgets, politics, laws, and society–and for what?

Judges Should Judge

I am pleased to pass on word from our friends at the Institute for Justice that they have established a new Center for Judicial Engagement.  The center is dedicated to reinvigorating the judicial branch to stand up and perform its constitutional role instead of showing the deference so many courts now give to the political branches of state and federal government.

As much lip service that has been paid to the bogeyman of “judicial activism,” the reality is that the courts have been all-too-reluctant to sacrifice constitutional questions to acquiesce to the supposed wisdom of political actors.  Veteran IJ lawyer and friend of Cato Clark Neily will be heading the center, and had this to say about its mission:

We need judges to judge.  What we see too often now is judges who ignore evidence, invent facts, and accept implausible explanations for government regulations.  That amounts to judicial abdication.  Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.

As outlined by IJ in a press release, the basic principles of judicial engagement include:

1.  The Constitution limits both the means and ends of government action.

The Framers wrote the Constitution to constrain government power.  The Constitution explicitly defines a limited set of powers belonging to the federal government; government actions outside the scope of those powers are illegitimate and unconstitutional.  The Constitution also demands that even legitimate powers of government be exercised fairly and without discrimination.

2.  The Constitution guarantees a broad array of individual rights.

While the powers granted to government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad.  Some of those rights are specifically listed in the Constitution, and some are not.  But all rights are entitled to meaningful judicial protection, regardless of their source.  There are no “second-class” constitutional rights.

3.  The job of judges is to enforce the Constitution.

Judicial review has been a vital part of our system of government for more than 200 years, and it remains a key bulwark against government tyranny and abuse of power.  It is the duty of judges to strike down government actions that assume powers not granted by the Constitution or that violate individual rights.  It is not “judicial activism” to strike down unconstitutional laws or government actions; it is judicial engagement—taking the Constitution seriously and applying it consistently in all cases.  Refusing to strike down unconstitutional acts is not admirable “judicial restraint,” it is judicial abdication—judges literally failing to do their jobs.

4.  The government should not have a leg up on citizens challenging government actions.

Laws are not entitled to judicial “deference” simply because they result from a democratic political process.  To the contrary, the Framers were deeply concerned about interest-group politics and majority tyranny, and they designed the Constitution to protect individual rights from those dangers.  Enforcing a presumption of government power over individual liberty, as courts typically do today, gets this design exactly backwards.

5.  Facts matter.

It is impossible to determine the constitutionality of any regulation without determining the government’s actual objectives in enforcing it.  But courts often ignore that question altogether, and will accept even the most ridiculous explanations at face value or, when necessary, simply invent justifications of their own in order to uphold government action against constitutional challenge.  This is profoundly mistaken.  Judges must carefully weigh the facts of each constitutional case, just as they would in any other case, and meaningfully evaluate the government’s action.  Ignoring evidence, inventing justifications and rubber-stamping the exercise of government power—which have come to be the norm in the vast majority of constitutional cases—represents abdication, not judgment.

We fully agree – and applaud IJ for adding innovative programming such as this new center to its continuing litigation against the government Leviathan.  Please check out the new center’s homepage here and its inaugural declaration here.

Cal Thomas Fulminates against Freedom

Cal Thomas, who bills himself as “America’s #1 nationally syndicated columnist,” rose to fame as the vice president of Jerry Falwell’s Moral Majority in its heyday, though you won’t find that fact in any of his official biographies. But you could figure it out by reading his columns. In his latest, on the California gay marriage decision, he ranges from factual inaccuracy to a revelation of just how reactionary and authoritarian he really is, to a really striking biblical citation.

He starts by denouncing the “decision by a single, openly gay federal judge.” Not true. Judge Vaughn Walker may be gay, but he has never said so. And Salon magazine demonstrates that any such “evidence” is extraordinarily thin. So this is an extraordinary statement by a man who calls himself a journalist of 40 years’ standing. Not to mention an offensive suggestion that gay people shouldn’t serve as judges. Thomas went so far as to call former attorney general Ed Meese, who recommended Walker to President Ronald Reagan, to ask how such a thing could have happened, and Meese assures him,  “There was absolutely no knowledge, rumor or suspicion” of Vaughn Walker being a homosexual at the time of his nomination by Ronald Reagan. Well, thank God. You’d hate to think that Ronald Reagan would have put an accomplished Republican lawyer on the federal bench if he’d been a homosexual.

Thomas goes on to complain that this (not) “openly gay federal judge” has struck down “the will of 7 million Californians.” Well, yes.  Of course, 6.4 million Californians voted the other way, so I guess on net he struck down the will of 600,000 Californians. And that’s what judges do when they strike down unconstitutional laws. The Supreme Court in Brown v. Board and Loving v. Virginia “struck down the will of tens of millions of Americans.” Libertarians and conservatives asked the Court in the Kelo case to strike down the duly enacted eminent-domain laws of Connecticut.

The sentence continues: The judge also struck down “tradition dating back millennia” – though for much of that time marriage involved one man and more than one woman. And of course traditions are not to be followed blindly. No doubt Cal Thomas thinks that millions, even billions, of Jews, Muslims, Hindus, and Buddhists should leave the faiths of their fathers and follow Christ.

And then the sentence moves to Thomas’s real concern: The judge also struck down “biblical commands, which the judge decided, in his capacity as a false god, to also invalidate.” Does Thomas really believe that the judges of the United States, operating under a Constitution that makes no mention of God, should obey “biblical commands”? It’s true that the Virginia trial judge who convicted the Lovings of miscegenation did rule that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He thought he was following biblical commands. But the Supreme Court overruled that judge.

Thomas is fulminating against gay marriage and against “judicial vigilantism.” But his real objections to American law and life go much deeper:

We have been spiraling downward for some time, beginning in the ’50s with the Playboy philosophy that gave men permission to avoid the bonds of marriage if they wanted to have sex. In rapid succession came the birth control pill (sex without biological consequences), “no-fault divorce” (nullifying “until death us do part”), cohabitation, easily available pornography, and a tolerance for just about anything except those who deem something intolerable.

Cal Thomas would like to take American life back somewhere before the 1950s, before adults could make their own decisions about sex, before birth control and cohabitation and tolerance. The American people may still be split 50-50 on gay marriage, but they would overwhelmingly reject Thomas’s reactionary vision for society.

How reactionary? Well, consider this:

Muslim fanatics who wish to destroy us are correct in their diagnosis of our moral rot: loss of a fear of God, immodesty, especially among women, materialism and much more.

Which sort of follows from his earlier point:

No less a theological thinker than Abraham Lincoln concluded that our Civil War might have been God’s judgment for America’s toleration of slavery. If that were so, why should “the Almighty,” as Lincoln frequently referred to God, stay His hand in the face of our celebration of same-sex marriage?

A more loving Christian might think that God would punish a nation that practiced slavery, but not a nation that allowed everyone to make a commitment to the person they loved. But surely Katrina, the financial crisis, 9/11, and the BP oil spill are enough punishment, even for a nation that displays a “tolerance for just about anything.” Anything that’s peaceful, anyway, as Leonard Read put it.

Toleration really is the thing that Thomas doesn’t like:

What we tolerate, we get more of, and we have been tolerating a lot since the Age of Aquarius generation began the systematic destruction of what past generations believed they had sacrificed, fought and died to protect.

I wonder how many American soldiers really believed that they went into battle to prevent gay people from marrying the person they love. I’ll bet more of them said they were fighting to protect our freedom, our Constitution, and indeed our religious freedom – for everyone.

Thomas ends his column with a biblical citation for those who want to “understand what happens to people and nations that disregard God”:

“In those days Israel had no king; everyone did as he saw fit.” (Judges 21:25)

Two books later in the Old Testament, in I Samuel 8, the story of Israel and its lack of a king is continued. This is actually one of the most famous passages in the history of liberty and of Western civilization. As we’ll see in a moment, the rest of the story served as a constant reminder that the origins of the State were by no means divinely inspired:

    1: And it came to pass, when Samuel was old, that he made his sons judges over Israel.

3: And his sons walked not in his ways, but took bribes, and perverted judgment.
4: Then all the elders of Israel came to Samuel,
5: And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now make us a king to judge us like all the nations.
6: But the thing displeased Samuel, And Samuel prayed unto the LORD.

7: And the LORD said unto Samuel, Hearken unto the voice of the people

9: yet protest solemnly unto them, and shew them the manner of the king that shall reign over them.
10: And Samuel told all the words of the LORD unto the people that asked of him a king.
11: And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, and some shall run before his chariots.
12: And he will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and his chariots.
13: And he will take your daughters to be cooks, and to be bakers. 14: And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants.
15: And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants.
16: And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work.
17: He will take the tenth of your sheep: and ye shall be his servants.
18: And ye shall cry out in that day because of your king which ye shall have chosen; and the LORD will not hear you in that day.

19: Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us;
20: That we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles.

21: And Samuel heard all the words of the people, and he rehearsed them in the ears of the LORD.
22: And the LORD said to Samuel, Hearken unto their voice, and make them a king.

God’s warning to the people of Israel – you will be sorry if you choose a king to rule over you – resonated not just in ancient Israel but on down to modern times.  Thomas Paine cited it in Common Sense to remind Americans that “the few good kings” in the 3000 years since Samuel could not “blot out the sinfulness of the origin” of monarchy.  The great historian of liberty, Lord Acton, assuming that all 19th-century British readers were familiar with it, referred casually to Samuel’s “momentous protestation.” And now Cal Thomas thinks this seminal warning against tyranny is a capstone to his tirade against freedom, tolerance, and equality under the law. How sad.

Reagan-Appointed Judge Strikes Down Gay Marriage Ban

Chuck Donovan of the Heritage Foundation denounces Judge Vaughn Walker for “extreme judicial activism” and “judicial tyranny” in striking down California’s Proposition 8, which barred gay people from marrying. And of course he doesn’t fail to note that Judge Walker sits in … San Francisco. Robert Knight of Coral Ridge Ministries ups the ante: Judge Walker has “contempt for the rule of law” and is part of “the criminalization of not only Christianity but of the foundational values of civilization itself.” National Review allows the head of the National Organization for Marriage to mutter about the judge’s “personal bias.” Blog commenters rail against the “left-wing liberal judge.”

In fact, Judge Walker was first appointed to the federal bench by President Ronald Reagan in 1987, at the recommendation of Attorney General Edwin Meese III (now the Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at the Heritage Foundation). Democratic opposition led by Sen. Alan Cranston (D-CA) prevented the nomination from coming to a vote during Reagan’s term. Walker was renominated by President George H. W. Bush in February 1989. Again the Democratic Senate refused to act on the nomination. Finally Bush renominated Walker in August, and the Senate confirmed him in December.

What was the hold-up? Two issues, basically. Like many accomplished men of the time, he was a member of an all-male club, the Olympic Club. Many so-called liberals said that should disqualify him for the federal bench. People for the American Way, for instance, said in a letter to Judiciary Committee chair Joe Biden, “The time has come to send a clear signal that there is no place on the federal bench for an individual who has, for years maintained membership in a discriminatory club and taken no meaningful steps to change the club’s practices.”

The second issue was that as a lawyer in private practice he had represented the U.S. Olympic Committee in a suit that prevented a Bay Area group from calling its athletic competition the Gay Olympics.

Because of those issues, coalitions including such groups as the NAACP, the National Organization for Women, the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force worked to block the nomination.

In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

Josh Green of the Atlantic notes a pattern: the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters. Of course, Nixon and Branstad don’t have the conservative cred of Reagan and Meese.

George Will on Judicial Activism

George Will offers conservatives a useful reminder about “judicial activism” and what the Supreme Court ought to be doing:

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

The recent decision most pleasing to conservatives was this year’s Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives’ refusal to defer to Congress’s expertise in regulating political speech.

So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?