Courting trouble: only a frontal assault on the power of the courts can restore America's constitutional balance

National Review, August 17, 1998 by Robert P. George, Ramesh Ponnuru

Mr. George is a professor of politics at Princeton. Mr. Ponnuru is NR's national reporter.

The campaign to combat judicial usurpation seems to be fizzling. While conservatives have talked about ambitious projects like impeaching out-of-control judges or amending the Constitution to require judges to hew to the original understanding of its provisions, they have been unable even to slow down the Senate's assembly-line confirmation of Clinton judicial nominees. True, Republicans have shot down easy targets like Frederica Massiah-Jackson, whose outlandishly pro-criminal-defense record embarrassed even liberals. But overall, the Republican Senate is confirming judges faster than an earlier Republican Senate confirmed President Reagan's nominees.

Republicans appear simply to lack the will to take on the courts. And who can blame them? The public isn't up in arms about judicial imperialism. The issue isn't easy to publicize either, especially through a hostile media. Despite what is now a long history of abuses, federal judges in general are respected (even though they stand at the intersection of lawyers and politicians). Finally, politicians often don't mind having their powers usurped when it relieves them of responsibility for controversial matters.

But Republicans duck the issue at their peril. All the supposed conservative judicial triumphs of recent years, from rolling back racial preferences to restoring federalism, have been won by narrow majorities; with three Supreme Court appointments likely in the next five to seven years, all of them could be reversed. Already, only a few circuits practice self-restraint. And as President Clinton appoints more judges, the courts will grow increasingly effective in blocking Republican public-policy initiatives.

If Republicans don't care about constitutional considerations, they should consider civic and political ones. Courts have struck down state partial-birth - abortion bans on grounds stretching from the specious to the ludicrous. Thus, the ''compromise'' position that has endlessly been urged on pro-lifers -- leave the abortion license in place, and settle for restrictions at the margin -- is not permitted; even infanticide can't be banned. Pro-lifers will just have to go back to the arduous task of passing a constitutional amendment to undo the courts' handiwork. As the courts move leftward, this will not be the only constitutional amendment conservatives will have to demand.

And that is the optimistic view. If the rules are going to be changed to their systematic disadvantage, why should conservatives participate in normal politics at all? Some social conservatives will be tempted to retreat from politics; others, to resort to an unproductive and morally wrong-headed extremism or even to extra-constitutional resistance. Since social conservatives are the single largest portion of the GOP's base, either reaction would threaten its political health.

Self-interest, then, should move Republicans to act -- and more effectively than in the past. They have tried to combat judicial usurpation by appointing originalist judges and by proposing constitutional amendments. Neither strategy has worked. That's not surprising: the courts' excessive power is a structural problem not amenable to piecemeal solutions. The problem, that is, is less that liberals sit on the bench and make bad decisions than that they have a largely unchecked power to do so.

Any proposed remedy should both be educational (and thus of value even if the campaign for it fails) and solve the core problem (in case it succeeds). Some of the institutional fixes conservatives have proposed -- e.g., term limits for judges -- may or may not have merit, but aren't focused enough to meet these tests. Again, these proposals fail to challenge judicial imperialism at its root: the courts' claim always to have the last, authoritative word on constitutional interpretation.

Constitutional amendments to overturn particular judicial decisions don't challenge it either; indeed, they arguably also concede the courts' reading of the unamended Constitution.

But the Founders never intended to give the federal courts a monopoly over the interpretation of the Constitution. Marbury v. Madison, often cited in support of a monopoly, actually stands for a far more modest claim, namely that courts must apply the Constitution; nowhere does it deny that the other branches must do the same according to their own best lights. It stands, in other words, for constitutional supremacy, not judicial supremacy.

Abraham Lincoln, often reckoned the most profound student of the Founding in our political history, also challenged the idea of judicial supremacy over constitutional interpretation. Faced with an outrageous usurpation of democratic authority by the Supreme Court in Dred Scott v. Sandford, Lincoln said in his first inaugural that while court decisions must be respected in particular cases, they need not be considered binding as policy on other branches of government. His words are still apt: ''If the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.'' From time to time, the people themselves must resolve a constitutional question by the political act of supporting one branch's interpretation over another's. There is no scandal in this, since the Constitution, by its own understanding, derives its authority from the will of the people.