Don't Let Me Stop You

What the heck, you'll do what you want anyway.

The Economist and Supreme Court

Posted by Dan Draney on July 5, 2005

From the French countryside:

An article in the June 30th issue of The Economist discusses the prospects and implications of potential vacancies on the US Supreme Court. This was prior to Justice O’Connor’s announcement. Contemplating impending battles the article says:

If anybody does go, a long, hot battle will begin. Many of the court’s most important decisions have been made by the narrowest of margins—five votes to four. Just one more conservative justice, liberals tremble, might blur the separation of church and state, roll back affirmative action and gay rights and perhaps even overturn Roe v Wade, the landmark 1973 case that legalised abortion across the country. Many social conservatives, of course, are praying that George Bush will pick justices who will do precisely that. “The Supreme Court is our number one issue,” says Patrick Trueman, a senior legal counsel for the Family Research Council.

The author at least attributes the liberal position to “liberals,” but in our view it still is presented here with the air of objective truth. For example, it would be nice if the conservative counterpoint was described as something beyond hoping for “precisely that.”

We see the issue as ending the current, liberal practice of using the courts to usurp what are properly legislative, executive, and individual decisions. For example the problem is not “blur[ring] the separation of church and state,” but stopping the improper drive to impose a rigid secularism on a predominantly Christian culture. For 200 years it has been understood that the First Amendment prevents the government from restricting the rights of citizens to publicly display religious symbols. Now the liberal view is that the government is required to restrict religious expression in order to preserve it. Efforts to resist this radical proposition are then portrayed as radical.

The Economist continues:

To make matters more complicated, the court does not always divide neatly along ideological lines. Sometimes, the “conservatives” stick up for “conservative” causes, as in this week’s two rulings on displays of the Ten Commandments on government property. In both cases, Clarence Thomas, Antonin Scalia, Anthony Kennedy and Chief Justice Rehnquist deemed such displays acceptable, while Justices Souter, O’Connor, John Paul Stevens and Ruth Bader Ginsburg said they weren’t. Justice Breyer reckoned that the one in a Kentucky courthouse was no good, but the one outside the Texas capitol was fine, because it was less prominent and surrounded by secular artefacts. This diluted the implied official endorsement of Christianity, apparently.

The last sentence, particularly the last word of this passage says it all. It perfectly captures the utter incoherence of the Court on this issue. Perhaps Justice Breyer reached his conclusions based on another poll of foreign public opinion, as for his junvenille death penalty divinations.

Sometimes, however, “conservative” justices make “liberal” rulings. Earlier this month, the Supreme Court had to decide whether federal anti-drug laws took precedence over a Californian law that decriminalised marijuana for medicinal purposes. The court said that they did, because Congress regulates inter-state commerce. Mr Thomas, who is usually pigeonholed as the court’s most conservative member, was one of three dissenters. Not because he is a big fan of pot, but because he thinks that it is a big stretch to say that growing it in your backyard to ease the pain of terminal cancer affects inter-state commerce.

The important fact about Mr Thomas is not that he is conservative, but that he is the strictest of the “strict constructionists”. That is, he thinks the constitution means what it says, nothing more. The court’s job, he believes, is to apply it, not to “interpret” it in pursuit of desirable social outcomes. He approaches this task with anger and some clarity of thought, as his opinion in Kelo v New London showed last week.

It’s no coincidence that Justice Thomas is our personal favorite on the Court. He has probably made a decision or two we disagree with, but we haven’t yet seen one.

This article keeps getting better and better, so by now we have completely overlooked our quibble about the first quote.

Although strict constructionism is not the same as conservatism, the two philosophies often coincide. This is because since the 1930s the Supreme Court has generally stretched the constitution for progressive ends. One example is the vast expansion of federal power to regulate the economy that the justices approved during the New Deal era. But the one that irks conservatives most is Roe v Wade.

The American way

Other countries expect their legislators to legislate on contentious moral issues. In Belgium and the Netherlands, elected representatives have voted to legalise gay marriage; as did the lower house of Canada’s parliament this week. The same is true, one way or the other, with abortion. Most European parliaments have legalised it; an Irish referendum kept it illegal.

In America, by contrast, conservatives whinge that abortion is legal because a majority of judges, after peering into the constitution’s “penumbra”, discovered a right to abortion that had lain hidden for centuries. As the young Mr Rehnquist put it: “To reach its result, the court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”

One reason why the debate about abortion and other moral issues has been more bitter in America than elsewhere is that many Americans believe that the Supreme Court has usurped powers that properly belong to Congress, the states or the people: that unelected judges are “legislating from the bench”.

This is precisely the problem. Fighting out controversial issues in the elected branches is messy, but it gives legitimacy to the ultimate decisions that a ruling from an unelected elite will never have. Moreover, if public opinion shifts, the elected branches are able to effect changes in the law reflecting the changed opinion.

Similarly, the threat of judicial imposition of gay marriage “rights” has mobilized opposiition to gay marriage in a way that legislative action could never do. If the people are in full control of the process via their elected officials, there is no need to impose constitutional bans. Gay rights advocates have severely damaged their cause by attempting to enact their agenda through the courts.

Furthermore, the continual abuse of the court to legislate an outcome desired by liberals (mainly, so far) is the direct cause of the hyper-political environment surrounding court nominees today. Returning to a strict constructionist view has the potential to depoliticize the court again at least in the long run.

Mr Thomas and Mr Scalia believe this with a passion. Mr Rehnquist believes it, too, but he is more reluctant to scrap long-standing precedents. In 2000, for example, he voted to re-affirm the Miranda ruling of 1966 (obliging police to remind criminal suspects of their rights when arresting them), although he had earlier expressed doubts about its constitutionality. His reasoning was that Miranda “has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

Mr Bush has said that he would like to appoint more strict constructionists: he cites Mr Thomas and Mr Scalia as his models. A Supreme Court packed with Clarence Thomases would be revolutionary. It would seek to reduce its own power, but retroactively, overturning decades of rulings it believed the constitution never empowered its predecessors to make. Abortion rights, environmental protections, labour regulations: none would be safe.

It’s a sad commentary on where we are today that the idea of judges sticking to what the constitution actually says is labeled “revolutionary.” On abortion, for example, even if a future court were to find there is no support for Roe v Wade, that would just return the matter to the legislatures of the states and the Congress. This would lead to some restrictions on abortion, according to the will of the people in those states. There is no reason that New York and Utah, for example, have to have exactly the same laws on abortion. In most states this would not lead to either an outright ban or the complete, unrestricted access desired by either extreme. In any case both sides would have to fight it out in the political arena where it belongs. The Republic can survive that a lot more easily than the contined political judicial climate.

It is a startling prospect, but probably a distant one. Too much radicalism might cost the Republicans future elections, so Mr Bush may opt for caution. And whatever the composition of the post-Rehnquist Supreme Court, it is rare that an institution deliberately shrinks its own powers. Would the pope renounce the doctrine of papal infallibility?

There’s every reason to think that President Bush understands the situation and the stakes completely. He’s shown that so far in his judicial appointments. We don’t believe he is going to blow his chance to give the court a strong push back in the direction of constructionism. The abuse of the judicial system must be confronted and reversed, and the sooner the better.

If the pope renounced the doctrine of papal infallibility, would he be wrong?

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