Judicial Activism and the Courts

I have become more and more interested in this subject recently after a number of court rulings, particularly by the United States Supreme Court. I have looked into several interesting decisions specifically because of the liberal use of the courts to establish law. My previous posting was about the danger of more liberal nominations after the next election should Barack Obama win the election and the Democrats control the Senate. This time let us look at a couple of specific cases.

The District of Columbia Gun Control Law (Heller versus DC)

Mr. Heller is a man who legally carries a gun during the performance of his job in Washington, DC. He is trained to use it and carries it when at work. The DC gun law denied Mr. Heller the right to possess a firearm at home despite his training and demonstrated ability to carry a gun safely. Mr. Heller sued based on the interpretation of the Second Amendment of the Constitution that the individual right to own guns for legitimate purposes is not to be infringed by state or municipal law. DC maintained that its interest in the protection of the citizens of DC was sufficient cause to pass the law. In a 5-4 ruling today, the US Supreme Court struck down the DC law, causing howls of liberal protest and celebration by conservatives. Justice Scalia wrote in the majority opinion that while the efficacy of protecting the citizenry by restricting gun ownership is debatable, the power of the court to contravene the Second Amendment is not debatable. Therefore, the Supreme Court has the power to review and interpret law but does NOT have the power to make law. It therefore follows that if the US Supreme Court does not hold this power, no lower court does.

The landmark case of Marbury vs Madison confirmed the idea of judicial review even though the concept had been informally in place earlier. In the Marbury case, Chief Justice John Marshall found that there was a conflict between the Constitution and the Judiciary Act of 1789. Since the Judiciary Act was a law passed by Congress, the question became whether Congress could legitimately pass a law which conflicted with the Constitution. Marshall wrote that law that conflicts with the Constitution is not law and therefore the Constitution always wins out. Since the Constitution is the highest law of the land and judges swear an oath to it, how can a judge issue a ruling in conflict with it? Marshall’s point was that there was no reason to have a Constitution if Congress never paid attention to it and passed laws in conflict with it.

One of the more interesting things which came out of this decision is how the four liberal justices (Souter, Stevens, Ginsburg, Breyer) all found a way to justify the law despite it being in conflict with the United States Constitution. The Canon of Constitutional Avoidance states that if an issue can be interpreted without causing a constitutional conflict, it should be interpreted that way. In this case, there was no way to avoid the conflict because the law directly conflicted with the Second Amendment despite any good intentions of the DC government.

Eminent Domain (Susette Kelo versus City of New London)

The concept of Eminent Domain has been around for a long time. The idea is that a government can seize property from an individual property owner for use to benefit the community at large. Per the Takings Clause of the Fifth Amendment, the property owner is compensated for the value of the property, though often not to their satisfaction. This has historically meant takings for uses like hospitals, transportation centers, public utilities and other obvious public welfare projects, usually tax-funded. For completeness, eminent domain does not only apply to real estate properties, it can be used by the government to seize military needs, trade secrets, patents and other intellectual properties. The difference in the Kelo case was that property was being taken from an individual to be used for a private venture for profit by other private investors, not the government. The government of New London argued that the improvements to the property would increase tax revenues and the business venture would be good for the citizens at large. Kelo argued the government had no right to seize property from an individual for another individual. The taking of property for profit subsequently made its way to the US Supreme Court.

The case was decided 5-4 in favor of City of New London setting off nationwide protest. The majority were the five liberal justices and Justice Anthony Kennedy. In opposing the ruling, Justice Scalia argued that ruling in favor of New London would eliminate the distinction between private and public property and that the only private property would be property the government was not interested in obtaining. After the decision, reaction was swift. Polls showed between 65-97% of people interviewed disagreed with the decision. President Bush issued an executive order banning similar eminent domain procedures by the federal government. More than forty states have enacted laws to prevent takings like the Kelo case. This is another case of the liberal US Supreme Court justices making law in conflict with the constitution. The Fifth Amendment specifically states “nor shall private property be taken for public use, without just compensation”. The liberal justices substitute “public purpose” for the actual phrase “public use”. This means that any wealthy business can have the local government condemn (take) anyone’s property solely with a promise to have a more successful business. This is clearly an example of liberalism in that the government is always smarter than its citizens and always knows what is best for individuals. This decision also preferentially gives advantage to the wealthy and powerful.

Both of these cases point out the need to avoid nominating judicial activists to the courts. President George W. Bush can be accused of a lot of things but he has certainly been a lot more successful in nominating Supreme Court justices who interpret rather than create law than either Presidents Eisenhower or Reagan.

Judicial Nominations and Politics

Let's start with a couple of references from the United States Constitution:

Article 1 Section 1 - All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 3 Section 1 - The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

By legislative powers, in addition to funding and other duties, the constitution means to create and modify law, subject to ratification by the Executive Branch, in the person of the President of the United States. By judicial power, the constitution gives courts the power to try federal cases (including disputes between states) and to interpret the constitutionality of laws. It is very clear to any reader that these powers do not include any provision for the judiciary to create law. In the last few decades, a slick way of writing unpopular law has emerged. Any party who has an agenda which will not be supported by the elected legislators can bypass the legislative process by filing a legal action with a sympathetic judge. The judge then issues an opinion that favors the plaintiff and it essentially becomes law. Even worse, the judge can strike down existing law and tell the legislature what kind of interpretation the judge will allow to stand, which makes the legislators redundant and powerless. It that case, the judge is clearly creating the law. Since the constitutionality of law is subject to review of the judiciary, and the judiciary is making the law, it should be fairly obvious that a judge is not going to strike down his or her own interpretation of the law. This process is usually referred to as “judicial activism”. It allows judges to do whatever they want to without regard to precedent or the desires of the elected representatives of the people. One needs to look no further than the historically astonishing opinions of the Ninth Circuit Court of Appeals in California for many examples. Not coincidently, the Ninth Circuit has more opinions reversed by the US Supreme Court than any other circuit.

Judicial activism has been responsible for a number of liberal causes becoming law. The recent same sex marriage opinion in California was created despite a 61% recent defeat of same sex marriage by the population of California in a vote. Roe versus Wade, the famous abortion decision, was decided based on a constitutional right to privacy which was created out of thin air by the Supreme Court. Under the theory of judicial activism, judges are free to do anything they want and, unlike elected legislators, there is nothing voters can do about it once they are in office. In fact, the legislature becomes powerless and useless.

Part of the Democratic push for the White House is that Justice John Paul Stevens is 88 years old and Justice Ruth Bader Ginsburg is 75 years old. In fact, the liberal justices are significantly older than the conservative justices. With a Democratic majority in the Senate and a Democratic President, the liberal wing of the Democratic Party will push for extremely liberal activist replacements should those justices retire or pass away. Additionally, the Democratic majority has been “running out the clock” by refusing to hold hearings of dozens of nominated judges so that if the next President is Democratic, all those nominations can be squashed and replaced by activists. Since the liberal agenda cannot be supported by legislation, the judiciary is used to create it.

The Republicans, on the other hand, are pushing for the Presidency so that more “strict constructionist” judges will be in place. Conservatives feel that by replacing even one of the liberal justices (Justices Stevens, Ginsburg, Breyer, or Souter), the direction of the court will be shifted. Chief Justice Roberts and both Justices Alito and Thomas are in their 50s. Only Justice Scalia, of the conservatives, is significantly older (72). Justice Kennedy, thought to be in the middle, is 71.

Since the court is currently thought to be four liberal, four conservative, and one swing vote, one new appointment could make a substantial difference to the make up of the court. Liberals are more anxious because of the ages of the liberal justices.

The choice in candidates is pretty clear. Barack Obama said in a recent statement, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." Therefore legal expertise and experience apparently have no place in evaluation of judicial nominees, as long as they support his political beliefs. John McCain said that he thought that "abuse of judicial authority" had continued unchecked. "The result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution,"

It is interesting that both Hillary Clinton and Barack Obama voted against the confirmation of both Justice Samuel Alito and Chief Justice John Roberts despite their stellar credentials and qualifications. Clearly their votes were agenda driven on not based on qualifications. John McCain voted to approve both nominees.

Despite the little political and media attention paid up to this point, judicial nominations might be the single most lasting result of the next President.