Term-Limit Justices, Let Congress Veto Court Rulings

This is the sixth in an occasional series of exclusive articles in which leading conservatives who served in the Reagan Administration explain how they believe the principles of Reagan conservatism ought to be applied today and in the coming years. This week, Mark R. Levin, who sen'ed as chief of staff to Any, Gen. Ed Meese in the Reagan Justice Department, addresses the Supreme Court.

President Ronald Reagan was a limited-government conservative who firmly believed in an originalist interpretation of the Constitution and in the representative form of government that the Constitution set up.

Unfortunately, like other Republican Presidents before and alter him, Reagan's efforts were, for the most part, stymied by the subsequent behavior of certain of his own appointees. As a consequence, the Supreme Court remains a threat to the Constitution and representative government.

Reagan did not fail for lack of trying, however. He did his best to appoint justices who shared his judicial philosophy. Over two terms, Reagan filled three vacancies and elevated conservative William Rehnquist to chief justice. He nominated the great Antonin Scalia to replace Rehnquist as an associate justice. But two Reagan appointees-Sandra Day O'Connor and Anthony Kennedy (his third choice after Robert Bork and Douglas Ginsburg)-would become huge disappointments.

When Reagan left office, the Supreme Court was still controlled by a majority of activist justices, as it is today.

I believe the Supreme Court is so broken it cannot be fixed simply by naming seemingly good candidates to the court, then hoping they vote like originalists during their life-long terms.

Institutional Reform

The Supreme Court needs to be reformed as an institution. It needs systemic solutions. Two I favor are limiting the terms of justices and giving Congress the power to veto a Supreme Court decision with a super-majority vote in both houses. Both reforms would require constitutional amendments. But it is time for conservative political leaders to start advocating them aggressively and making the case for why they are needed to the voters.

Originalists in the Reagan mold believe the federal government possesses only those powers specifically granted to it by the Constitution. Under the Constitution, the role of the courts is strictly limited. Their job is neither to make laws nor amend the Constitution but to interpret the laws and the Constitution as written, guided by the plain meaning of the words and the intent of the Framers.

"Judges are not to overturn the will of legislative majorities absent a violation of a constitutional right, as those rights were understood by the Framers," Judge Robert Bork once explained. "[J]udges may look to the text, structure, and history of the Constitution, but are prohibited from inventing extra-constitutional rights."

Bork himself paid a high price for fidelity to this principle, and the Reagan Administration's experience with his nomination helps illustrate why reform of the Supreme Court itself is needed.

When Reagan nominated Bork to the Court in 1987, liberal politicians and their allies in the media and in special-interest groups targeted him for character assassination. His views were systematically mischaracterized and maligned.

Even though Bork had been a law professor at Yale and had served with distinction as a judge on the U.S. Court of Appeals for the District of Columbia, four members of an American Bar Association review panel had the audacity to rate him "not qualified" to serve on the Supreme Court.

What they really meant is that they feared Bork's intellectual power and commitment to an originalist interpretation of the Constitution.

Left's Desperation

The liberal elite are desperate to keep the Supreme Court on their side to advance liberal policy priorities that lack the popular support to win approval from state legislatures or Congress. It was not elected lawmakers who expelled God from the public square, conferred due process rights on al Qaeda terrorists and forced states to educate illegal aliens. It was unelected justices on the Supreme Court. For decades, this is the way the American left has won its most important political battles-not at the ballot box, but in court.

Because this is so, the liberal establishment will do whatever it can to stop the confirmation of originalist justices. If it cannot stop the confirmation, it will attempt to seduce the justice into its own ranks once he is sitting on the court. As I wrote in Men in Black, President Nixon clearly understood this when he was trying to decide whether to nominate Harry Blackmun to replace Justice Abe Portas after the Senate had rejected Nixon's first two choices for that vacancy.

Blackmun later recalled that Nixon asked him, "What kind of woman is Mrs. Blackmun?" When Blackmun wondered what this question was getting at, Nixon said, "She will be wooed by the Georgetown crowd. Can she withstand that kind of wooing?"

Blackmun contended she could. But. later, when Blackmun was contemplating whether the Constitution protected a right to privacy that encompassed a right to abortion. Mrs. Blackmun turned out to he the best-placed lobbyist for the pro-abortion movement. As Bob Woodward and Scott Armstrong revealed in The Brethren, the justice's wife told one of Blackmun's pro-abortion clerks: "You and I are working on the same thing. Me at home and you at work."