Justice Stevens And The Imperial Judiciary

Jonah Goldberg has a perceptive column about the peril of judicial activism based on the recent Supreme Court ruling on capital punishment, Baze v. Rees, 553 U. S. ____ (2008). In a separate concurrence, Justice John Paul Stevens makes an argument that demonstrates a profound disrespect for the rule of law in this country:

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).

(Emphasis mine)

Now, Justice Stevens does not dispute that Supreme Court precedent makes it quite clear that the death penalty is constitutional. And indeed, one can make a perfectly legitimate argument that the Supreme Court got it wrong and that the death penalty is a violation of the Eighth Amendment’s ban on “cruel and unusual” punishment. Such an argument is almost certainly wrong and is unlikely to prevail, but it’s not an unreasonable argument to make.

Justice Scalia points out what is unreasonable about Justice Stevens’ argument:

As JUSTICE STEVENS explains, “‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.

This is about as sharp a criticism as you’ll find between Supreme Court justices. Goldberg puts it all into context:

Supreme Court justices must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.”

Note the bit about doing right to poor and rich alike. Feeling sorry for the poor guy who violates the Constitution or the law has no role in how a Supreme Court justice is supposed to make a decision. Legislators can write laws based on empathy. They can invoke their pet theories about “how the world works.” They can even, as Justices Stephen Breyer and Ruth Bader Ginsberg are fond of doing, consult foreign laws and court decisions in their efforts to make a more perfect union. But Supreme Court justices are supposed to decide what the written law requires, not pick winners and losers based upon some sense of noblesse oblige. That’s why all of those statues of Lady Justice show her standing blindfolded, not bent over kissing the boo-boos of the unfortunate and the downtrodden.

In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws? Is this to be a country where justices serve as a reliable backstop against encroachments upon the constitutional order, or is this to be a country where the most undemocratic branch of government serves as the tip of the spear for such intrusions?

The judiciary is supposed to be “the least dangerous branch” of government. The proper role of judges in our democratic system is not to make law, but to decide what the law is. That means that judges are supposed to be inherently limited to working with the text of the Constitution and statutes. The Supreme Court is not supposed to be a roving agent of justice that goes looking to right problems. That is the role of the legislature, a body which is directly accountable to the people.

If we have a system in which the judiciary can start overturning the rules of democratically-elected representatives based not on the Constitution, but on their own feelings then we have become not a democracy, but an enlightened despotism. Such power is too easily abused, which is why the Founders of this nation specifically did not want that to happen.

This nation is based upon the rule of law, not the rule of men (or women). Justice Stevens may be entirely right that the death penalty doesn’t work, but as Justice Scalia rightly observes, that is a question for the legislature, not the courts. Our system of justice must never be allowed to become a replacement for our system of government, and Justice Stevens’ comments displays exactly the sort of imperialist thinking that harms the rule of law in this country.

Barack Obama And The Rule Of Law

Stephen Bainbridge notes that Sen. Obama doesn’t exactly get it when it comes to the rule of law. The basic principle at stake here is this: judges are supposed to say what the law is, not what they think it ought to be. The function of a judge is not to act as a legislator who gets to change social policy based on their own values, but as an adjudicator. Chief Justice Roberts put it best during his confirmation hearings:

“Judges are like umpires. Umpires don’t make the rules; they apply them,” said Roberts. “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

Sen. Obama does not apparently share that view. Here’s what he said about the type of judge he would nominate:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

That’s precisely the wrong way to pick a judge. There is a reason why the statutes of Lady Justice has her wearing a blindfold—the law should not discriminate based on how sympathetic a defendant or a plaintiff is. It is not the position of a judge to decide that someone should be treated differently under the law merely because of the color of their skin or their social disposition. We are nation of laws, not of men. The law applies equally to all, and should not be subjugated to social whim, no matter how well-intentioned.

The problem that Sen. Obama has is that he really should know better. He knows what upholding the rule of law is about. His remarks on the nomination of Chief Justice Roberts show his two-faced approach to the law. He begins by saying this of Chief Justice Roberts:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

This is exactly the way one should evaluate a judge. A judge should be respectful of precedent (if not inflexibly respectful), modest in the course of statutory interpretation, respect procedure, and be impartial. By these criteria, there is no question that Chief Justice Roberts is quite deserving of his seat on the highest bench in the land.

Of course, Sen. Obama didn’t vote for Chief Justice Roberts when his nomination was brought to the floor of the Senate. His reasoning why betrays his fundamental misunderstanding of the rule of law:

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

This could not be more wrong, but to give Sen. Obama a fairer hearing, let us examine his deeper justification for this position:

On those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

On the surface, this seems perfectly reasonable: after all, we don’t want our judges to be heartless, do we? Yet this country is a nation of laws, not of men. What Sen. Obama wants in a judge is a judge that will take his or her own personal feelings as the deciding factor in a case. This is not following the rule of law, this is an example of a judge discarding the law and becoming something other than a neutral arbiter. This inevitably creates an imperial judiciary in which our government ultimately comes down to the personal feelings of 9 individuals rather than democratic process. This sort of attitude is deeply corrosive to the rule of law in this country.

It is not the job of the judiciary to judge based on their feelings. It is an invitation to judicial arrogance. There is a reason why affirmative action is offensive to the Constition—it is because the Constitution was not designed to allow for government to discriminate on the basis of race and is why the Bakke line of cases are wrong as a matter of law. The Constitution does not create a right of privacy in terms of reproductive rights. Roe struck down the laws of 30 states, yet nowhere in Roe is their any clue as to what part of the Constitution these statutes actually offended. Roe is wrong as a matter of law. The Commerce Clause was never designed to allow the federal government to sweepingly regulate anything even “tangentially related” to interstate commerce—unless you forget that the Tenth Amendment says the exact opposite. The Court in Darby Lumber declared the Tenth Amendment to be a mere “truism” that had little force of law. The Court in their more recent Commerce Clause jurisprudence got it right. Cases like Lopez and Morrison got it right as a matter of law—the Commerce Clause does not grant the federal government the power to regulate any activity even if it has even the most tenuous link to interstate commerce. To accept the rule that Sen. Obama would lay down would be to destroy the very notion of federalism, as there’s practically no activity which could then not be regulated by the states.

If Sen. Obama thinks that these conclusions are wrong, then the judges he nominates should come to a legal reason why these conclusions are wrong and these precedents should or should not be followed. The question should not be answered by stating that the judge simply doesn’t like the answer and is personally motivated to do other than what the law commands.

The “critical ingredient” is not what’s in a judge’s heart, but what is in their head. A judge cannot simply say that because a statute may be ambiguous that they can then reject the rule of law and decide the case based on whatever they want. A judge must have the modesty to accept that it is the Congress, not the judiciary, that makes law in this country, and if Congress comes to answer that a judge doesn’t like, then Congress must fix it. A judge that decides that they want to shape the law based around their whim has failed their first duty as a judge and is no longer a neutral arbiter, but has become a party to the litigation. When that happens, equal justice under the law has been denied.

Sen. Obama could not be more wrong on what makes a good judge. He would subjugate the rule of law to the whim of judges. A former professor of Constitutional Law should be far more circumspect. A judge may rely on precedent, tradition, the common law, public policy and a whole host of other considerations in coming to a legal conclusion. However, the second we start letting judges interject their own “hearts” into the issue is the second we abandon the our democratic values in favor of the Imperial Judiciary. Sen. Obama is simply wrong.