The constitution and the courts: a question of legitimacy.

• Author: Buckley, James L.
• Position: Judicial activism and the U.S. Supreme Court

Like ill-mannered children, some issues refuse to go away. In 1992, three Supreme Court Justices issued a plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey(1) in which they declared that even if the Court had erred in Roe v. Wade,(2) that error must stand because to overrule its central holding would inflict "unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law."(3) That being the case, the plurality in effect directed the pro-life community to give up, to stop trying to beat a horse that the Court had already put away.(4) But, the criticisms of Roe and its successors have only increased, and the efforts to narrow and ultimately reverse their holdings continue unabated.

The American Bar Association (ABA) has had no better luck in confining criticism of the judiciary. Three years ago, in reaction to calls for the impeachment of a controversial judge and to congressional initiatives that would have placed various limitations on federal courts, the ABA appointed a Commission on "the Separation of Powers and Judicial Independence" to address those matters. In due course, the Commission issued a report(5) urging the critics in and out of Congress to "cool it" lest their assaults compromise the judiciary's independence and undermine public confidence in the courts. The Commission was especially worried about the latter, citing polls that recorded a significant deterioration in public support for the judiciary.(6) To reverse that regression, the Commission recommended that the courts and Congress, particularly Congress, manifest the "spirit of restraint and common purpose" required by a system based on the separation of powers(7) and, most particularly, it expressed a need to "expand the public's knowledge of our judicial systems and the fundamental importance of the principle of judicial independence in a healthy democratic republic."(8)

Those are serious concerns, and the Commission's recommendations were well taken as far as they went. For whatever reason, however, the Commission largely ignored the part played by judicial overreaching in sparking the court-bashing it decried. Instead, it described charges of judicial encroachment on legislative or executive functions as old hat; and although it acknowledged that judges who failed to decide cases in accordance with the law could be a "threat to their own independence," it proclaimed that "activism" had become a "code word for a personal, political or ideological difference with a particular decision."(9)

Thus, in the hoary tradition of too many professional associations, the ABA's response has largely been to circle the wagons in order to protect the judiciary against attacks from any quarter, however legitimate some of the attacks might be. This appears to be the response of the legal establishment generally, vide an article by the president of the Los Angeles County Bar Association in which he notes that "our state and federal courts are under attack [for activism] on several fronts" and states that lawyers "have a professional and moral obligation to defend both the courts as institutions and our judges against these unwarranted and dangerous threats."(10) What these defenders of the status quo ignore is that not all of the criticism is unwarranted. Serious persons have leveled serious attacks on an approach to constitutional interpretation that has permitted American judges to carve their policy preferences into constitutional granite, and it serves no interest I know of to ignore that fact.

One of the blunter and, given its source, more sobering statements of that concern was issued in 1958 at a conference of the chief justices of the state supreme courts in reaction to the perceived excesses of the Warren Court. Addressing themselves to the problem of federal-state relations, the attending chief justices adopted, by a vote of thirty-six to eight, a resolution in which they respectfully urged

that the Supreme Court of the United States ... exercise one of the greatest of all judicial powers -- the power of judicial self-restraint -- by recognizing and giving effect to the difference between that which, on the one hand, the Constitution may prescribe or permit, and that which, on the other, a majority of the Supreme Court, as from time to time constituted, may deem desirable or undesirable....(11) Members of the Supreme Court have delivered even harsher assessments of their colleagues' work. An example is Justice John M. Harlan's dissent from the Court's discovery, some ninety-six years after the Fourteenth Amendment was adopted, that its Equal Protection Clause required one-man-one-vote representation in each house of a state legislature. In his dissent, Justice Harlan lamented what he described as the "current mistaken view ... that every major social ill in this country can find its cure in some constitutional `principle,' and that this Court should `take the lead' in promoting reform when other branches of government fail to act."(12) He went on to say:

This Court ... does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.(13) That last statement places the issue of judicial activism in its constitutional context. What we are faced with, at heart, is a question of legitimacy: whether, in issuing a particular decision, a court has acted within the scope of its constitutional authority. In addressing that question, it is useful to review some constitutional fundamentals, beginning with the source of all legitimate governmental powers as it is understood in the American tradition.

The Declaration of Independence affirms that governments "deriv[e] their just powers from the consent of the governed."(14) The Framers required that the Constitution be ratified by special conventions so that "We the People," through the act of ratification, might register our consent to the Constitution's assignment of specific powers to the three branches of the federal government and to its limits on their exercise.

In The Federalist No. 78, Alexander Hamilton described the federal judiciary as "the least dangerous" of the three branches because it had "neither FORCE nor WILL, but merely judgment."(15) Hamilton saw no threat in the judiciary because its role, as he and his contemporaries understood it, was to exercise judgment, i.e., to examine the language of the Constitution or of a particular statute and, having ascertained its meaning, to apply it in the resolution of a case or controversy. As John Marshall would later affirm, "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the...