October 4, 2016

Judicial Restraint and Activism, and the Importance of Judicial Nominations

In February of this year, Supreme Court Justice Antonin Scalia passed away suddenly.  In the months since, I have often paused to think about the way the judiciary has changed in my lifetime, especially in my years as a lawyer.  Legal scholars point to the Warren Court of the 1950s and ‘60s as the turning point when the justices moved away from the strict confines of the text of the Constitution and strong deference to prior court decisions, and moved into an era of activism.

Scalia was not one to let this pass silently by.

He will be studied by law students and constitutional scholars for decades to come as perhaps the most articulate and persuasive voice of the “strict constructionists,” justices who believed that their solemn duty is to interpret the law rather than make it.  Some of Scalia’s most powerful opinions excoriated his colleagues for adhering to the concept of a “living constitution” to allow unelected members of the judicial branch to create new law under the guise of constitutional interpretation, and outside the democratic processes that hold the other two branches of government accountable to the people.

There are many passages from Scalia’s opinions, especially his dissents, which capture what might be considered urgent warnings to the American people.  From Morrison v. Olson (1988), a case questioning the validity of a statute granting authority to appoint an agent of the executive branch to a special court, here is Scalia in dissent:

“Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court’s opinion is that it does not even purport to give an answer…Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.  This is not only not the government of laws that the Constitution established; it is not a government of laws at all.”

In Roper v. Simmons (2005), Scalia chastised the majority for basing their decision not on the original meaning of the Eighth Amendment, but on the “evolving standards of decency of our national society.” He concluded his dissent: “I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court…”

As you might have guessed by now, I count myself among those who favor judicial restraint and adherence to the original text of the Constitution.  For if that document is a “living document,” it is no longer tethered to the principles and guardrails so carefully constructed by our founders.  Respect for our nation’s charter would fall to a lower level of seriousness, subject to the whims of popular culture and rapidly changing politics.

Our next president will shape the ideological direction of our federal court system for a generation.  Since 1971, the average age of retirement for Supreme Court justices has been 79.  Right now, two judicial activists—Ginsburg and Breyer—and the lone centrist, Kennedy, are 78 or older.  Assuming these three justices retire during the next presidential term, and with the vacancy created by Scalia’s death, the remaining court would be divided between three “constructionists” (Roberts, Alito, Thomas) and two activists (Kagan, Sotomayor).

What if we were to add to these ranks four nominees of the same activist philosophy? While the Republican Senate has successfully blocked President Obama’s nominee to replace Scalia, I doubt the political climate would permit such resistance during a Hillary Clinton administration, even if the Republicans were able to hold on to the Senate.  Imagine the decisions a six-to-three majority activist Court would render.

However, for all of the attention given to Supreme Court nominees, the highest court in the land accepts relatively few cases each term.  Hundreds of thousands of cases each year are handled at the lower levels of the federal judiciary—the U.S. District Court and U.S. Circuit Court of Appeals.  The nominees to these lower courts, collectively, have arguably greater impact on the American Constitution and rule of law.

Consider this fact: When Obama took office, only three of 13 appellate courts had more Democrat-appointed judges than Republican-appointed judges.  Now, nine do.  During a single term, Hillary Clinton might be able to go for a clean sweep.  Remember, these lower federal court appointments are for life, too.

Despite its circus sideshow atmosphere, the importance of this presidential election cannot be overstated.  The ideological makeup of the federal courts for the next 30 years hangs in the balance.

Alexander Hamilton once said, “The judiciary has neither force nor will but merely judgment.” More than 200 years later, the federal courts, and the U.S. Supreme Court in particular, have assumed a power to bypass the elected branches of government, to will their extra-constitutional dictates upon the people.

Personally, this weighs heavily in my thinking about the presidential election.  There are so many serious and even troubling aspects to the two major party nominees, but in my final analysis, this election comes down to curbing judicial activism and preserving the integrity of our Constitution.