The View From 1776

Reporter Jess Bravin wrote, in an October 3, 2006, Wall Street Journal article, Ever since Justice Sandra Day O’Connor retired in January, the High Court has been dubbed the Kennedy Court. Between a bloc of four conservatives facing off against four liberal-leaning members, Justice Anthony Kennedy, with his own occasionally idiosyncratic jurisprudence, may tip the balance on hot-button cases.

With four Justices in each camp, the media-star, swing-vote Justice has, as many have noted, more power than any other person in the government.  That one Justice can make the decision for the entire Court and for the nation, and there is no appeal to a higher authority.

Such decisions seldom have turned on matters of statute law or the written words of the Constitution.  Generally they reflect the judge’s sociological ideas about what the law ought to be, not in fact what the law is.

Moreover, when an admittedly wrong decision is made, there is seldom an opportunity to correct it.  Even extreme left-wing liberal Justice Ruth Bader Ginsburg has written that it was a mistake for the Supreme Court to have mandated the process of murder known as abortion.  It would have been less divisive nationally, she said, to have left the decisions to each state’s legislature.  Yet, bad law as it is, Rowe v. Wade is not likely ever to be overturned, because so much time has elapsed and so many social, economic, and medical processes have been constructed around it.

Emil Pavone and Tom Emerson both alerted me to the following letter, which appeared in the weekend edition of the Wall Street Journal. 

Former Federal Court of Appeals Judge Charles W. Pickering Sr. wraps up the whole issue.

Justices Should Use Restraint and Stay Within the Constitution’s Text

November 4, 2006; Page A7

In regard to Justice Sandra Day O’Connor’s essay “The Threat to Judicial Independence1” (editorial page, Sept. 27):

I agree completely with Justice O’Connor that the judiciary is in jeopardy. But with the utmost respect, she addressed the symptoms, not the underlying root cause that threatens the judiciary with irreparable harm in the not distant future.

Democrat elder Joseph Califano wrote a guest editorial for the Washington Post in 2001 clearly articulating the underlying root cause of the actions that disturb Justice O’Connor. Mr. Califano pointed out that “the federal courts have become increasingly powerful architects of public policy. . . . Environmentalists, prison reformers and consumer advocates have learned that what can’t be won in the legislature or executive may be achievable in a federal district court where a sympathetic judge sits. . . . The individuals who fill these seats will have more power over tobacco policy, prison reform, control of HMOs, the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control and the rights of women and minorities than the president or congressional leaders, and for a longer period of time.”

Nan Aron, president of Alliance for Justice, in February 2005 on National Public Radio, stated it more succinctly: “There is obviously no way we are going to get new rights created by the Congress. So now we have to look to the courts to create new rights that we won’t be able to get from the Legislature.”

Some in America today seek to win in a court of law that which they cannot win in the court of public opinion, at the ballot box. Americans do not want “sympathetic judges,” they want impartial judges who do not legislate from the bench, but simply interpret the law.

Supreme Court justices are now asserting that they have the power to exercise their “independent judgment” to determine the “sense of decency” of a modern, evolving society. This sounds to most Americans like the thought process for making political, not judicial decisions. These judicial decisions may be enlightened, they may be good, or they may be bad and ill advised. That is not the question. The question is whether these decisions should be made by five judges or by the people through their elected representatives.

Justice O’Connor on another occasion posited that “we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues”; she called reliance on foreign law “‘transjudicialism’” and proclaimed that reliance on foreign law “will create that all-important good impression” (again a policy, not a judicial, consideration).

There are 190 nations in the world today. Many are egregiously repressive. Other nations are far more liberal than the United States. Which of these nations will we follow? To properly represent clients, will lawyers now have to research the law of 190 nations, or at least the 120 that have some form of democracy? Picking and choosing which laws to follow and which to ignore is a political decision, not a judicial act of interpretation. The rule of law requires that what the law demands be revealed (1) in advance (2) with clarity. These requirements are impossible to meet with an evolving, changing Constitution.

Justices who claim that our Constitution is a changing, evolving document and that members of the Supreme Court are the final arbiters to determine when the Constitution has evolved or changed rely upon the 1803 case of Marbury v. Madison for precedent. But the Court in Marbury, though clearly proclaiming the doctrine of judicial supremacy, strictly interpreted the Constitution, exercised judicial restraint and declined to wield power granted by Congress but not authorized by the Constitution. Chief Justice John Marshall, writing for the Marbury Court, declared that our written Constitution: emanated from the supreme authority, “the people”; was our greatest improvement of political institutions; was the “fundamental,” “paramount” and “permanent” law of the land and could not be changed by “ordinary means.” He explicitly stated that: The court could not intrude into matters delegated by the Constitution “to the executive”; that the court could “never” consider “questions, in their nature political”; and that the “courts” as well as the other branches of government were “bound” by the Constitution. He went so far as to say that if the courts were not bound by the Constitution it would have been “immoral” to impose upon judges an oath that they will “support” the Constitution.
Justice O’Connor argues: “Judges can—and do—sometimes render erroneous decisions, but that is why appeals are allowed to a higher court.” The fallacy of this argument is that when the Supreme Court makes the error, there is no appeal.

One finds absolutely no basis in the Constitution for the power claimed by some members of the court to alter or evolve the Constitution. The only constitutionally approved method of changing the Constitution is the amendment process. The judiciary is ill-equipped to make the kinds of political policy decisions described by Mr. Califano. The court has no process for receiving public input, developing a consensus, or compromising issues, as do the other two branches of government.
Justice O’Connor argues that if independence of the judiciary is not maintained, justice will be “‘sacrificed to what is vulgarly called politics.’” Respectfully, and regrettably, some on the court have already made that sacrifice. They have made the court a political branch of government, and in so doing sacrificed justice.

Because judges are making political policy decisions—as pointed out by Mr. Califano and Ms. Aaron—special interest groups now see the confirmation of judges as elections for the highest political officials in the land. As a result, confirmation has become a bitter, mean-spirited political fight.

The natural consequence of this bruising confirmation battle is, according to a recent study, that one of two prospective nominees now declines. Justice Thomas reports the “brightest and best” of our law graduates are now deciding not to pursue a judicial career. When one of two says “no thanks” and our “brightest and best” are not even willing to enter the starting gate, the brain drain from the judiciary could be devastating, and in the near future. That is the real and genuine threat to the quality, independence and diversity of the judiciary, not the symptomatic activities disturbing to Justice O’Connor. This should alarm all Americans. A modern civilized nation must have a competent judiciary to administer justice.

If justices of the Supreme Court will quit going outside the text of the Constitution, as some are now doing and as the majority did in Dred Scott; will interpret the Constitution according to its language with judicial restraint as did Chief Justice Marshall in Marbury, and will allow the people to change or alter the Constitution, then the problems highlighted by Justice O’Connor, as well as the bitter confirmation fight, will both go away and the independence of the judiciary will be preserved for our children and grandchildren.

Charles W. Pickering Sr.
Jackson, Miss.

(Judge Pickering, retired from the Fifth Circuit Court of Appeals, is the author of “Supreme Chaos: The Politics of Judicial Confirmation & the Culture War.")

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