Order in the court: how judges should think

Christian Century, Dec 27, 2003 by Thomas C. Berg

AMERICANS ARE LOCKED in an intense conflict over the role of federal courts. Conservatives are deeply aggrieved by Supreme Court decisions in the past 30 years that have struck down laws against abortion, laws on homosexuality, and certain laws and policies promoting religion in the public square. In a 1996 symposium, "The End of Democracy?," the journal First Things protested "an entrenched pattern of government by judges" and raised the possibility that "conscientious citizens can no longer give moral assent to the existing regime."

Another round in the judicial wars began in June with the Supreme Court's decision in Lawrence v. Texas invalidating laws in 13 states prohibiting private, consensual adult sodomy. The case involved a gay man having sex with another in his apartment. Lawrence contributed, at least to some degree, to the Massachusetts state supreme court's decision in November that the state must recognize same-sex marriages. Simultaneously, a backlash against Lawrence added momentum to the proposed Federal Marriage Amendment to the Constitution, which would bar (among other things) court decisions, federal or state, that confer "marital status or the legal incidents thereof" on any relationship other than a male-female couple.

The conflict has also polarized the confirmation process for the judicial nominees of George W. Bush (himself declared president only after an intensely controversial Supreme Court decision). Conservatives, angry that the key Supreme Court votes for abortion and gay rights came from Republican-appointed justices, have vowed to ensure that Bush's nominees will be solid conservatives like Justices Antonin Scalia and Clarence Thomas. On the other side, Senate Democrats have blocked several lower-court nominees, largely (though not solely) because the nominees were viewed as hostile to abortion rights. A Supreme Court vacancy, which is likely within a couple of years, may spark the mother of all confirmation battles.

The critics of the court have some valid points-though I do not endorse their sky-is-falling rhetoric. It's helpful first to define the popular term "judicial activism," which is often used in the debate, though in varying ways.

If "activism" is a bad thing, then the term should not apply simply when a court invalidates a state or federal law. Some laws are unconstitutional and ought to be struck down. An activist decision is one that invalidates a law or executive action without a solid basis for doing so in the text, history or structure of the Constitution.

The power of a court to invalidate unconstitutional laws--"judicial review"--has been a feature of our government from the outset. In Marbury v. Madison (1803), the great Chief Justice John Marshall laid out the classic rationale. "We the people" of the United States as a whole have power to set rules that constitute and limit our government, superseding ordinary legislation and executive action. Thus, in a lawsuit where a constitutional rule conflicts with a statute or executive policy, the court hearing the case must follow the Constitution and ignore the conflicting act.

This rationale explains why judicial review is consistent with a commitment to representative democracy--that is, a commitment to subjecting government to the consent of the governed--even though federal judges are unelected and hold office for life. In rejecting a law as unconstitutional, the judge is not making her own decision but is simply applying the will of the entire people expressed in the Constitution. Courts are insulated from elections precisely so they can adhere to this "supermajority" will in the face of actions by current majorities.

The problem is that the Constitution is an open-ended document. In arguing that judges must follow the constitutional text, Marshall chose clear examples like the requirement that no one may be convicted of treason without "the testimony of two witnesses to the same overt act." But many of the most important rights-protecting phrases--"due process of law," "equal protection of the laws"--are far more broad and general. If interpreted expansively, they can involve huge areas of life and put numerous public policy decisions in the hands of judges. Lawrence v. Texas holds that "liberty" in the "due process" clause gives adults the right to have consensual sex in private. Does it also give a right to take illegal drugs in private? To take one's own life? To run a private business free from excessive government regulation (as the court held until the 1930s)? If not, how does sexual activity differ from taking drugs or committing suicide or running a business?

A second problem is that when a court strikes down a law, any error in that ruling is very difficult to correct. The Constitution can be amended; but securing passage by two-thirds of both houses of Congress and three-quarters of the states is (and was meant to be) a high hurdle, as is dramatized by the failure of the popular Equal Rights Amendment. New presidents may appoint new justices, but that project also is long and uncertain: even after 12 years with President Reagan and the first President Bush, both committed to overturning Roe v. Wade, the key votes to reaffirm Roe in 1992 came from the Republican appointees Sandra Day O'Connor, Anthony Kennedy and David Sourer. In contrast, decisions of legislatures and executive officials can be reversed by majority vote--a much easier process, notwithstanding inertia and entrenched political interests.