Liberals say the Supreme Court is too conservative. Conservatives say it’s too liberal. But many experts in both camps agree that the nine current justices have taken us too far down the road of judicial supremacy.
In an end-of-term speech on July 9, outgoing Solicitor General Theodore Olson told the conservative Federalist Society that this may be "the most powerful Court in the nation’s history." While the justices "have deep disagreements about how the country should be governed," observed Washington lawyer Miguel Estrada at a July 12 Heritage Foundation forum, "they all agree that they should be governing the country." The Court "seems incapable of admitting that some matters — any matters — are none of its business," complained Justice Antonin Scalia in a June 29 dissent.
Nor is this just conservative sour grapes. At the same Heritage forum, Walter Dellinger, a leading Democratic scholar who was President Clinton’s acting solicitor general in 1996 and 1997, enthusiastically seconded Scalia’s complaint and added this: "This Court puts itself at the center of the constitutional universe…. It’s rather striking, the Court’s lack of deference to anyone else."
No deference to Congress. Especially striking is the Court’s pattern of treating Congress, in which the Constitution vests "all legislative powers," as a junior partner in the law-making process. Take the June 29 decision in Ashcroft v. ACLU, barring enforcement for now (and probably forever) of the Child Online Protection Act of 1998, in which Congress required Internet sellers of hard-core commercial pornography to verify that each online visitor was 18 or older before letting him or her see their smut. The 1998 criminal statute — adopted after the justices had in 1997 struck down the earlier, much broader, Communications Decency Act of 1996 — reflected Congress’s painstaking effort to "meet each and every criticism of the predecessor statute that this Court set forth, [and] protect children from exposure to obscene professional pornography without obstructing adult access to material that the First Amendment protects," in the words of Justice Stephen Breyer’s dissent. But that did not stop the majority, in an opinion by Justice Anthony Kennedy, from nullifying the 1998 law unless and until the government can prove that no "less restrictive" protections for children could possibly be devised. "The Court in effect gave Congress the finger," observes Paul Rosenzweig of Heritage.
The same day, the justices ruled 6-3 that federal courts may entertain lawsuits by foreigners claiming to be victims of severe human-rights violations anywhere in the world. Justice David Souter’s majority opinion (Sosa v. Alvarez-Machain) styled this as an interpretation of the long-dormant Alien Tort Statute of 1789. He followed the reasoning (while disapproving of some of the results) of lower courts that have read the statute since about 1980 as authorizing international human-rights lawsuits — even though Congress clearly had no such intent, either in 1789 or since. Scalia’s dissent called this "the latest victory for [the Court’s] ‘Never Say Never’ Jurisprudence."
No deference to the president. The Court on June 28 rejected by a stunning 8-1 vote President Bush’s claim of power to hold U.S. citizens suspected of being "enemy combatants" incommunicado for years, perhaps decades, with no meaningful judicial review. This decision (Hamdi v. Rumsfeld) was basically right, in my view. But the justices gave disturbingly short shrift to the government’s argument against giving such detainees immediate access to lawyers, lest the attorneys disrupt interrogations and thus "interfere with the military’s compelling interest in gathering intelligence to further the war effort."
In Rasul v. Bush, the Court squashed by 6-3 Bush’s argument that no court could question his detention of non-American prisoners overseas, including the hundreds held at the Guantanamo Bay, Cuba, naval base. This prompted Scalia to complain in dissent that the Court had extended its powers "to the four corners of the Earth," risking "conflict between judicial and military opinion highly comforting to enemies of the United States."
No deference to states. Scalia broke some furniture himself in a 5-4 decision on June 24 that threw the sentencing systems of about a dozen states into chaos, along with the federal government’s own congressionally ordained sentencing guidelines. Scalia’s opinion in Blakely v. Washington held that the Sixth Amendment right to trial by jury bars use of judicial fact-findings to increase any defendant’s sentence beyond the ordinary range for his crime.
Now it was Kennedy’s turn to accuse Scalia of dissing democracy, by engineering "the destruction of a sentencing scheme devised by democratically elected legislators." Justice Sandra Day O’Connor’s separate dissent attacked the potentially "disastrous" Scalia opinion for imposing a "rigid rule that destroys everything in its path," including "over 20 years of sentencing reform" by states and Congress. So much for judicial restraint.
No deference to the Court’s own precedents. Administration lawyers had initially been confident of winning the Guantanamo case because under a 1950 Supreme Court precedent, Johnson v. Eisentrager, federal courts lacked jurisdiction to hear petitions from foreigners held by the government outside the United States. But the administration underestimated the ingenuity of 84-year-old Justice John Paul Stevens. He wrote for the majority that Eisentrager had been effectively overruled by a 1973 decision that did not even mention it. This was, as Scalia wrote for the dissenters, "implausible in the extreme."
All nine justices complain when precedents that they like are disregarded. But not one is consistently willing to "accept legal precedent as binding" when it stands in the way of what he or she wants to do, Estrada said at the Heritage forum. They "really don’t care about acting like a court [and thus are] not really doing [their] job," he asserted. Other experts add that by deciding many cases on such narrow grounds as to leave unclear what the Court will do in the next case raising similar issues, the justices shirk their cardinal duty to tell litigants and lower courts what the law is.
In short, none of the nine consistently practices judicial restraint. And when the justices do invoke that ideal, it is often an exercise in disingenuousness. Take the 5-3 decision on June 14, which ducked the merits of the case in which a federal appeals court in California had ruled that "under God" must be dropped when the Pledge of Allegiance is recited in schools (Elk Grove Unified School District v. Newdow).
The case presented a dilemma for the four liberals and Kennedy. A decision striking out "under God" would have provoked an election-year firestorm, perhaps even a constitutional amendment. But that was the outcome required by any honest reading of the most relevant precedent, a 1992 decision in which Kennedy had tortured language and logic to find that a brief, nondenominational, nonparticipatory prayer by a rabbi at a middle-school graduation amounted to unconstitutional "compulsion" of all students to "participate in a religious exercise."
Stevens escaped this box by seizing upon a dispute between the atheist who had brought the lawsuit to bar his daughter’s school from reciting "under God" and the girl’s mother, who disagreed. To avoid intruding into this family law dispute, wrote Stevens for the majority, the lower courts should have invoked the "prudential standing" doctrine to dismiss the case. But the Stevens twist on this doctrine was so contrived that it’s hard to imagine any of the majority justices taking it seriously had they not been so desperate to hide the radical implications of their own graduation-prayer precedent.
Given all these complaints, from critics across the ideological spectrum, why do we put up with these self-aggrandizing judicial legislators? Why do they outpoll Congress and the executive in terms of public confidence? Why has no modern president ever dared defy them?
One reason is that all nine justices are credited, even by critics, with being highly capable and honorably motivated by their visions of the public good, rather than by pursuit of votes, campaign money, or self-enrichment. A second reason is that the two who control the outcomes of the biggest cases, O’Connor and Kennedy, have moderate political philosophies and never stray very far from the mainstream of public opinion — or, at least, of elite opinion. A third reason is that the justices provide an indispensable check against abuses by the states and the elected branches.
Congress has largely abdicated its own duty to restrain the wartime president. So the Court stood alone against Bush’s frightening claim of power to seize anyone in the world, at any time, and hold him incommunicado, perhaps for decades, with no semblance of due process. A more restrained or timid group of justices might have acquiesced.
For myself, I hate the Court’s relentless aggrandizement of its own powers — except when I like it.