Judicial Misconduct and Discipline

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Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato's Center for ConstitutionalStudies.

I want to thank Chairman Hyde of the committee and ChairmanCoble of the subcommittee for their invitations to me to testify onthe important issue of "Judicial Misconduct and Discipline." Thesehearings have been called, I understand, because of a concern thata number of people have expressed about "judicial activism"--thepractice by judges of applying to cases before them not the law butprinciples or values that are no part of the law. Because such apractice is thought by many to constitute judicial misconduct, somein Congress are searching for ways to discipline it.

I. Summary

At the outset, let me summarize my thoughts on this subject,then discuss it in somewhat more detail. There can be no questionthat judicial activism, as just described, has been a problem inour legal system for some time. The power of the judiciary underour Constitution to declare the law and decide cases under that lawis awesome; when abused, that power is too often beyond reach. Atthe same time, I believe that many of those who have complainedmost often about judicial activism have overstated and misstatedthe problem, thus distracting us from the real issue--legislativeactivism on the part of Congress, which leads to judicialactivism.

Overstating the problem. Many of the examples of "judicialactivism" that are cited turn out, when examined more closely, notto be cases in which the judge failed to apply the law but appliedthe law differently, or applied different law, to reach a resultdifferent than the result thought correct by the person chargingactivism. To be sure, there is no bright line between failing toapply the law and wrongly applying the law or applying the wronglaw, but when that distinction is drawn, it turns out that thereare fewer cases of true judicial activism than at first mayappear.

Misstating the problem. More importantly, the problem of"judicial activism" is seriously misstated when it is cast, as itoften is, as involving judges overruling the will of the people. Inour legal system, judicial review often requires a judge to do justthat. In such a case, were the judge to defer to the politicalwill, exercising "judicial restraint" when the law requires activejudicial intercession, that restraint would itself be a kind ofactivism, for it would amount to an "active" failure to apply thelaw in deference to democratic or majoritarian values. The judge insuch circumstances would be shirking his judicial responsibilitiesevery bit as much as if he overrode a legitimate exercise ofpolitical will in the name of other values.

Thus, as terms of art, judicial "activism" and "restraint" canbe quite confusing and even misleading. What is more, they areoften used in ways that camouflage the real issues. What we allwant, I assume, is judges who are neither "active" nor "restrained"but "responsible"--responsible to the law. But when the law isunclear or inconsistent, judicial responsibility may be difficultto achieve--and "activism" inevitable. In the end, therefore, oursubstantive law may be the ultimate source of the problem before ustoday. That, in fact, is what I will argue shortly. Let me begin,however, with a brief overview of the complaints. [1]

II. The Critics of Judicial Activism

Complaints about "judicial activism," however formulated, can befound from our inception as a nation. In their modern form,however, they have come largely since the advent of the WarrenCourt and most often from political conservatives. My fellowpanelist today, Professor Lino Graglia, with whom I have debatedthe issue more than once, has put the complaint starkly:

... the thing to know to fully understand contemporaryconstitutional law is that, almost without exception, the effect ofrulings of unconstitutionality over the past four decades has beento enact the policy preferences of the cultural elite on the farleft of the American political spectrum. [2]

"That is exactly right," comments Judge Robert Bork in hisrecent best-seller, Slouching Towards Gomorrah, "and thequestion is what, if anything, can be done about it." [3] I gather that these hearings are a partialanswer to that question.

The bitter confirmation battle that followed Judge Bork'sSupreme Court nomination a decade ago had a way of concentratingthe issue for many, of course. Still, the issue has been in the airsince the 1950s, covering subjects as various as civil rights,apportionment, federalism, speech, religion, abortion, education,criminal law and procedure, and much else. And in each case, thecomplaints from conservatives have been essentially the same.

Speaking before the Federalist Society's 10th anniversarylawyers convention last November, for example, Senator Orrin Hatch,chairman of the Senate Judiciary Committee, summarized the issuefrom his perspective:

What is at stake ... is nothing less than our right todemocratic self-government as opposed to ... "Government byJudiciary." For when we commission judicial activists who distortthe Constitution to impose their own values, policy preferences, orvisions of what is just or right, we are in effect sacrificing ourability to govern ourselves through the democratic politicalprocesses to the whims and preferences of unelected, life-tenuredplatonic guardians. [4]

Judges "must interpret the law, not legislate from thebench," Senator Hatch continued. "A judicial activist, on the leftor the right, is not, in my view, qualified to sit on thefederal bench." [5]

In a similar vein, little more than two months ago Senator JohnAshcroft, chairman of the Constitution Subcommittee of the SenateJudiciary Committee, told the Conservative Political ActionConference at its annual meeting that it was time "to take abroader, comprehensive look at the alarming increase in activism onthe court." [6] Asking what we can do toput an end to "judicial tyranny," Senator Ashcroft called forrejecting "judges who are willing to place private preferencesabove the people's will." [7]

Not to be outdone by the Senate, on March 11 House Majority WhipTom DeLay told editors and reporters at the WashingtonTimes that "as part of our conservative efforts againstjudicial activism, we are going after judges" and are "right now"writing articles of impeachment. [8]Those sentiments were echoed two days later by Congressman Bob Barrof this subcommittee when he appeared on CNN's "Crossfire."Clearly, perhaps as never before, the issue of judicial activism ison the nation's agenda. [9]

III. Overstating the Problem

It is not entirely clear just what has brought the judiciary andits methods to the nation's attention at this point in time. Cynicspoint to the need for something--some issue--in a driftingRepublican Party: "The revolution is in the doldrums. Nobody's gota plan; nobody's got a direction." [10]Others, however, have noted a rising frustration amongconservatives over their relative ineffectiveness on the judicialfront despite having dominated the judicial selection process sincethe Nixon years. [11] And still otherscite a series of recent cases that have seemed to crystalizecomplaints about judicial activism: the district judge who stayedthe California Civil Rights Initiative (CCRI); [12] the New York judge who suppressed evidencein a drug case, saying the police had no reason to stop thesuspects; [13] the decision by theSupreme Court that the Virginia Military Institute had to becomecoeducational. [14]

Looked at in broad perspective, there can be no question thatthe drift in American law over the past 40 years and more has beenin large part to the left, as that term is ordinarily understood.And a good part of that drift has resulted from court decisions.Yet by no means can all or even most of the drift be attributed tothe courts. Moreover, even that part that has resulted from courtdecisions does not arise entirely or even primarily from "judicialactivism"--not unless that idea is stretched to include everydecision that conforms to some leftist political agenda.

In fact, when we look at most such decisions closely, we rarelyfind that the judge or justices "legislated." To be sure, theyoften reach results consistent, if not with their "whims," at leastwith their "values, policy preferences, or visions of what is justor right." But those results can usually be tied to some legalanchor, even if it takes some stretch to do so.

Take the recent CCRI decision by U.S. District Court JudgeThelton Henderson, which enjoined enforcement of the initiativeshortly after it was passed by some 54 percent of California'svoters. Many critics of the judiciary immediately pointed to thedecision as a blatant example of judicial activism. JudgeHenderson's opinion was a stretch, to be sure. But it was notwithout legal foundation, citing Hunter v. Erickson, 393U.S. 385 (1969) and Washington v. Seattle School District No.1, 458 U.S. 457 (1982). Moreover, as we know, the case hastaken the normal appellate course; the decision has since beenreversed by the U.S. Court of Appeals for the Ninth Circuit;[15] and plaintiffs have just filed apetition for certiorari with the Supreme Court. We are likely tolearn from the Court whether the cases Judge Henderson relied uponin fact apply or are still good law. In the meantime, however, weare hard pressed to say that his decision was "lawless," howeverstrained it may have been.

One could review putative cases of judicial activism almostad infinitum, of course, but the fact remains that thebetter part of such cases do not exhibit judicial lawmaking, justbetter or worse judicial reasoning. It is no small irony, however,that when we do come across a genuine case of blatant judicialactivism that cuts the other way, politically, many conservativecritics of the judiciary are strangely silent. That was pointed outjust last week, for example, by conservative constitutional scholarBruce Fein in an op-ed in the New York Times, citing thecurrent controversy over the decision of an Alabama state judge todefy a long line of Supreme Court rulings on the separation ofchurch and state "by posting a copy of the Ten Commandments in hiscourtroom and inviting clergy to lead juries in prayer," [16] even after a state appellate court foundthe practices unconstitutional.

IV. Misstating the Problem

In the end, therefore, those who are concerned about judges whoseem always to be leaning to the left may be better advised to lookless to the judicial role in our system--to the practice ofjudicial review--and more to the reasoning judges employ inperforming their roles and, more importantly, to the sources theyemploy when doing their reasoning. Bad reasoning is just that andshould be called that, not called judicial "activism." But bad law,from which so much bad reasoning proceeds, is another matter. Weshould hardly be surprised that judges today are thought so oftento be engaged in "judicial activism" when they are called upon sooften to apply law that is inconsistent, incoherent, and fairlyinvites them to make all manner of value judgments. In suchcircumstances, they can hardly be seen to be doing anything butlegislate.

We come, then, to what in fact is the crux of the matter. Underour system of law, the role of the judge should be much simplerthan it has come to be. The problem, however, does not go back just40 years, as too many conservatives believe. Rather, itsinstitutional roots are in the New Deal. And its ideological rootsare in the Progressive Era, when we stopped thinking of governmentas a "necessary evil," as the Founders had conceived of it, andstarted thinking of government as an engine of good, an instrumentfor solving all manner of social and economic problems. Standing inthe way of carrying out that agenda, of course, was a constitutionthat established a government of limited, enumerated powers--aconstitution that held, more or less, until the New Deal. As we allknow, however, when President Roosevelt was unable to get hisprograms past the Court--there being no authority for them underthe Constitution--he threatened to pack the Court with sixadditional members. Not even Congress would go along with that.Nevertheless, the Court got the message; there was the famousswitch in time that saved nine; and by 1938 the Court hadessentially turned the Constitution on its head, as New Dealarchitect Rexford Tugwell would later tell us the administrationmeant for it to do. [17]

In a nutshell, a document of delegated, enumerated, and thuslimited powers became in short order a document of effectivelyunenumerated powers, limited only by rights that would thereafterbe interpreted narrowly by conservatives on the Court andepisodically by liberals on the Court. Both sides, in short, wouldcome to ignore our roots in limited government, buying instead intothe idea of vast majoritarian power--the only disagreement beingover what rights might limit that power and in which circumstances.Indeed, we need look no further than to Judge Bork--no liberalhe--to see the new vision stated--and wrongly ascribed to JamesMadison. The "Madisonian dilemma" that constitutional courts face,Bork tells us, is this:

[America's] first principle is self-government, which means thatin wide areas of life majorities are entitled to rule, if theywish, simply because they are majorities. [It's second principleis] that there are nonetheless some things majorities mustnot do to minorities, some areas of life in which theindividual must be free of majority rule. [18]

That gets the Madisonian vision exactly backward, of course.America's first political principle may indeed have beenself-government, but its first moral principle--and thereason the people instituted government at all--was individualliberty, as the Declaration of Independence makes plain for "acandid world" to see.

Indeed, we did not throw off a king only to enable a majority todo what no king would ever dare. Rather, the Founders instituted aplan whereby in "wide areas" individuals would be entitled to befree simply because they were born so entitled, while in "some"areas majorities would be entitled to rule not because they wereinherently so entitled but as a practical compromise.

That gets the order right: individual liberty first;self-government second, as a means toward securing thatliberty--with wide berths to state governments, which were laterreined in by the Civil War Amendments. That is why the Constitutionenumerated the powers of Congress and the executive, to limit them.And that is why the Bill of Rights concludes with the Ninth andTenth Amendments: to make clear that Americans begin and end withtheir rights, enumerated and unenumerated alike, while governmentproceeds only with the power it is given.

The New Deal changed all that, of course, not by amending theConstitution, the proper method, but by radically reinterpretingit: in particular, by reading the General Welfare and CommerceClauses not as shields against power, as they were meant to be, butas swords of power; then by turning the Bill of Rights into adocument of "fundamental" and "nonfundamental" rights. [19] None of that was found plainly in theConstitution--to the contrary, the entire document tends plainlythe other way. Rather, it was invented virtually out of wholecloth, by the New Deal Court, to make way for the New Deal'spolitical agenda.

Our modern problem of overweening, inconsistent, incoherentstatutory law began, then, not with an activist Court--to thecontrary--but with an activist Congress and executive branch, benton expanding government power. In time, however, the problem wasabetted by an activist Court--succumbing to pressure from thepolitical branches. But as noted earlier, the Court's "activism"was not as we think of it today--a search for rights not apparentin the Constitution. Rather, it was activism in finding rationalesfor power--what conservatives today call deference to the politicalbranches.

It needs to be said again, however, that the New Deal Court'sactivism was not entirely without legal foundation. The sources forthe Court's rulings were there, in the Constitution, even if it didtake a high degree of creativity, to be charitable, to draw themout, and even if doing so did fly in the face, for the most part,of a century and a half of constitutional jurisprudence that wentthe other way.

We come, then, to the bottom line in all of this. Law, includingconstitutional law, is not written in immutable stone. It is tosome extent malleable, of necessity, and is given life by thosecharged with giving it life--the judiciary. In doing their work,however, judges do not work in a vacuum. They work instead in alarger political climate. If we who shape that climate persist inbelieving that it is proper for government to be addressing ourevery problem, no matter how trivial or personal, and persist inbelieving that our Constitution can legitimately be read toauthorize that result, then we should not be surprised that thejudiciary is dragged along to play its part in the process--today,often, to try to undue the mess that legislatures make of theeffort. [20]

Yes, judges today often thwart the majoritarian will--as avestige, perhaps, of their former principal role. Just as often,however, a judge may see himself as simply a facilitator in thegrand enterprise of government. We are coming to the close of whathas rightly been called the century of government--more accurately,the century of failed government planning. If we are unhappy withthe role the judiciary sometimes plays in this setting, it may bethat we need to look first to the material we give judges to workwith--the reams of statutory material we have enacted over thecourse of the century.

The Founders had a simpler vision in mind when they set out tocraft our legal order. They left most human affairs to privateordering, not to government planning. That gives the judiciary--andCongress--relatively little to do. Is that not what critics ofjudicial activism want?

A curriculum vitae is attached. Pursuant to House Rule XI,clause 2(g)(4), neither I nor the Cato Institute receives anyfederal funds--as a matter of principle.


Notes

[1] I havediscussed the issues that follow more fully in: "Congress, theCourts, and the Constitution," Cato Handbook for Congress(105th Congress), ch. 3 (esp. pp. 36-42), (1997); "A Government ofLimited Powers," Cato Handbook for Congress (104thCongress), ch. 3 (1995) (reprinted as "Restoring ConstitutionalGovernment," Cato's Letter No. 9 (1995)); "RethinkingJudicial Restraint," Wall Street Journal, Feb. 1, 1991, atA10 (op-ed); "Constitutional Visions," Reason, Dec. 1990,at 39-41 (review of Robert Bork's The Tempting ofAmerica); "Legislative Activism, Judicial Activism, and theDecline of Private Sovereignty," in Economic Liberties and theJudiciary (J. Dorn & H. Manne eds., 1987); and "On theFoundations of Justice," 17 Intercollegiate Rev. 3(1981).

[2]LinoGraglia, "It's Not Constitutionalism, It's Judicial Activism," 19Harvard Journal of Law & Public Policy, 293, 298(Winter 1996).

[3]Robert H. Bork,Slouching Towards Gomorrah 114 (1996).

[4]"Remarks ofSen. Orrin Hatch Before the Federalist Society's 10th AnniversaryLawyers Convention," Senate Judiciary Committee News Release, Nov.15, 1996, at 4.

[5]Id., at 5(original emphasis).

[6]John Ashcroft,"Courting Disaster: Judicial Despotism in the Age of RussellClark," March 6, 1997, at 4 (MS available from the office ofSenator Ashcroft).

[7]Id., at 3.

[8]Ralph Z.Hallow, "Republicans out to impeach 'activist' jurists,"Washington Times, March 12, 1997, at 1. See also KatharineQ. Seelye, "House G.O.P. Begins Listing A Few Judges to Impeach,"New York Times, Mar. 14, 1997, at A24.

[9]This very briefoverview barely touches on the vast body of both scholarly andpopular literature on the subject, to say nothing of politicalactivism about judicial activism. In this last category, forexample, is the Judicial Selection Monitoring Project of theconservative Free Congress Foundation's Center for Law &Democracy, which on January 27, on behalf of 260 grassrootsorganizations and 35 radio and television talk show hosts,petitioned President Clinton and members of the Senate to nominateand confirm only those candidates for the federal bench who arecommitted to judicial restraint.

[10]MichaelKelly, "TRB from Washington: Judge Dread," The NewRepublic, Mar. 31, 1997, at 6. See also Laurie Kellman,"Republicans rally 'round judge-impeachment idea," WashingtonTimes, Mar. 13, 1997, at A1: "The plan is aimed in part atreviving Republican morale, which has flagged this year because ofMr. Gingrich's ethics troubles and the majority's sparse floorschedule," at A18.

[11]See,e.g., Terry Eastland, "Deactivate the Courts," TheAmerican Spectator, Mar. 1997, at 60. For a fuller treatmentof why conservative efforts to influence the courts have been sounsuccessful, see James F. Simom, The Center Holds: The PowerStruggle Inside the Rehnquist Court (1995). For a critique ofthat book, and the Court itself, see Roger Pilon, "A Court Withouta Compass," 40 New York Law School Law Review 999(1996).

[12]Coalitionfor Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal.1996).

[13]UnitedStates v. Bayless, 913 F. Supp. 232 (S.D.N.Y.), rev'd on rehearing,921 F. Supp. 211 (S.D.N.Y. 1996).

[14]UnitedStates v. Virginia, 116 S. Ct. 2264 (1996).

[15]Coalitionfor Economic Equity v. Wilson, 1997 U.S. App. LEXIS 6512 (9thCir.).

[16]Bruce Fein,"Judge Not," New York Times, May 8, 1997, at A39. Cf.Debbie Kaminer, "Thou Shalt Not Display the Ten Commandments inCourt," Legal Times, May 5, 1997, at 27; Terrence P.Jeffrey, "Governor James at the Courthouse Door," HumanEvents, May 9, 1997, at 6.

[17]"To theextent that these [New Deal policies] developed, they were torturedinterpretations of a document [i.e., the Constitution]intended to prevent them." Rexford G. Tugwell, "A Center Report:Rewriting the Constitution," Center Magazine, Mar. 1968,at 18, 20.

[18]Robert H.Bork, The Tempting of America 139 (1990)(emphasisadded).

[19]I havediscussed these issues more fully in Roger Pilon,"Freedom,Responsibility, and the Constitution: On Recovering Our FoundingPrinciples," 68 Notre Dame Law Review 507 (1993).

[20]Thus, theCourt has long been criticized by conservatives for its 1971decision in Griggs v. Duke Power Co., 401 U.S. 424, which gave riseto the "effects test" in antidiscrimination law and to a host ofaffirmative action programs. But in interpreting the language ofsection 703 (h) of the Civil Rights Act of 1964, which authorizes"any professionally developed ability test" that is not "designed,intended, or used to discriminate because of race" (at433, emphasis by the Court), the Court simply drew upon theambiguity of "used." Congress could later have addressed thatambiguity, of course, but it did not. In cases like this, then,responsibility rests ultimately with Congress.

Roger Pilon

Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives