Men in Black (3 page)

Thurgood Marshall

Marshall, appointed by LBJ in 1967, stayed on the Court too long. In his final years on the Court, he became indifferent to his judicial duties—he reportedly left much of the writing of opinions to his clerks and sometimes didn’t bother to read the briefs submitted by counsel. Instead, he apparently spent many hours watching television in his chambers, especially soap operas.
²⁸
People
magazine had called him a devotee of
Days of Our Lives
as early as 1982,
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and he once told fellow justice William Brennan that you could learn a lot about life from soap operas.
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Despite the fact that he wasn’t quite giving it his all, he didn’t want to leave, since he would probably be replaced by a conservative. “But despite poor health in recent years—his eyesight is failing, he wears a hearing aid, and he broke his hip in a fall last year—he was determined to keep his seat as long as the likely replacement was another conservative nominee. With cantankerous tongue in cheek, Marshall would tell his clerks, ‘If I die, prop me up and keep on voting.’”
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In his waning years, Marshall would disparage the framers of the Constitution. At a speech in Hawaii, he said, in part:

Marshall couldn’t have been more wrong, and couldn’t have had a weaker grasp of the Constitution. The Constitution established principles of governance. Discrimination, injustice, and inhumanity are not products of the Constitution. To the extent they exist, they result from man’s imperfection. Consequently, slavery exists today not in the United States but in places like Sudan. Indeed, the evolution of American society has only been possible because of the covenant the framers adopted, and the values, ideals, and rules set forth in that document.

Many truly great individuals have served on the Supreme Court. Many great rulings have been issued by the Court. But the justices have been frequently and wrongly deified. They have co-opted authority that has not been granted to them; they have usurped the authority that has been granted to Congress, the president, and the states; and they continually behave like an Olympian council.

Men in Black
, which refers to the men and women who serve as judges and justices on the federal bench, tells the story of how America has turned from the most representative form of government to a de facto judicial tyranny. From same-sex marriage, illegal immigration, and economic socialism to partial-birth abortion, political speech, and terrorists’ “rights,” judges have abused their constitutional mandate by imposing their personal prejudices and beliefs on the rest of society. And we, the people, need not stand for it.

“The American people will never be able to regain democratic self government—and thus shape public policy—until we curb activist judges.”

Edwin Meese III,
attorney general of the United States under President Ronald Reagan
¹

A
merica’s founding fathers had a clear and profound vision for what they wanted our federal government to be. They created a republican government strong enough to protect and nurture the young nation but, at the same time, one limited in scope and size so that it could not squelch states’ prerogatives or stifle their citizens’ liberty. The overarching purpose was to prevent the concentration of power in a relative handful of institutions and individuals.

With respect to the federal judiciary, the framers also had definite intentions. They wanted a central court system free from the political pressures of the legislative and executive branches of the government
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with a narrow role and limited authority
³
—a judiciary that respected, applied, and preserved the rule of law and the principles of popular sovereignty enshrined in the Constitution.

Were our forefathers to view the American federal government of the twenty-first century, I believe they’d be appalled. Activist judges have taken over school systems, prisons, private-sector hiring and firing practices, and farm quotas; they have ordered local governments to raise property taxes and states to grant benefits to illegal immigrants; they have expelled God, prayer, and the Ten Commandments from the public square; they’ve endorsed severe limits on political speech; and they’ve protected virtual child pornography, racial discrimination in law school admissions, flag burning, the seizure of private property without just compensation, and partial-birth abortion. They’ve announced that morality alone is an insufficient basis for legislation. Courts now second-guess the commander in chief in time of war and confer due process rights on foreign enemy combatants. They intervene in the electoral process.

The Supreme Court in particular now sits in final judgment of essentially all policy issues, disregarding its constitutional limitations, the legitimate roles of Congress and the president, and the broad authority conferred upon the states and the people. The Court has broken through the firewalls constructed by the framers to limit federal and, especially, judicial power.

The plain language of the Constitution should govern judges when rendering constitutional decisions. Judicial decisions should not be based on the personal beliefs and policy preferences of a particular judge. Judges are appointed for life
because
they’re not politicians. And because they’re not politicians, they’re not directly accountable to the people and are not subject to elections. They have a different role, which is to search for answers to the issues presented to them based on what the Constitution and the law compel. They have a duty to approach their responsibilities with restraint. Their decisions carry the weight of law and can have far-reaching consequences. When a judge strays from this obligation, he undermines the very structure of our Constitution, disenfranchises the people, and inserts into law subjective opinions that often lead to inconsistent, illogical, and flawed results. The Constitution defines and establishes the distribution of authority, the structure of government, and the process by which national decisions are to be made.

Generally speaking, judges tend to adhere to one of two philosophies. Too few judges keep their sworn oath to uphold the Constitution. Those who do look to the text of the Constitution and the intent of the framers when deciding a constitutional question, and believe they are bound by them. These judges are known as originalists. Too many judges consider the Constitution a document of broad principles and concepts, one that empowers them to substitute their personal beliefs, values, and policies for those enumerated in the Constitution. They see their role limited only by the boundaries of their imaginations. These judges are activists or non-originalists.

Originalists believe that the powers enumerated specifically in the Constitution are the only powers of the federal government, unless the Constitution is formally amended. Originalists generally interpret provisions of the Constitution (and, when applicable, statutes) narrowly. In other words, these judges attempt to look at the plain meaning of the law. They believe in a clearly delineated separation of powers.

My friend Robert Bork summed it up well when he said that originalism “appeal[s] to a common sense of what judges’ roles ought to be in a properly functioning constitutional democracy. 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.”
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Moreover, “judges may look to the text, structure, and history of the Constitution, but are prohibited from inventing extra-constitutional rights.”
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“Originalism seeks to promote the rule of law by imparting to the Constitution a fixed, continuous, and predictable meaning.”
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Originalists object to the judiciary grabbing power in the name of advancing a social good or remedying some actual or perceived injustice. To the extent that this framework is compromised, both liberty and the rule of law are jeopardized. The judiciary, operating outside its scope, is the greatest threat to representative government we face today.

A judicial activist, on the other hand, construes the Constitution broadly and rejects some of its provisions outright (or gives them superficial acknowledgment) if they interfere with the desired outcome. In essence, activist judges make, rather than interpret, the law. They substitute their will for the judgment of deliberative bodies. They see their role as “doing justice” or “righting wrongs” when, in fact, they’re doing neither. They’re no more just or wise than the next guy. Judicial activists simply use their high positions to impose by fiat that which should be determined through the democratic process.

Four landmark decisions by the U.S. Supreme Court stand out as examples of the terrible consequences that can arise when activist Supreme Court justices substitute personal policy preferences for constitutional imperatives. The cases of
Dred Scott v. Sandford
,
Plessy v. Ferguson
,
Korematsu v. United States
, and
Roe v. Wade
(which I will discuss in a later chapter) are all examples of judicial activism. In these four cases, the Court either ignored the clear mandates of the Constitution in favor of a desired result or usurped legislative authority. These decisions had tragic and far-reaching consequences.

Dred Scott
was decided in 1856. It is one of the most infamous cases in American history.
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Scott was a slave whose master, an army surgeon, had taken him to posts in Missouri, Illinois, and what is now Minnesota. When Scott’s master died, Scott was inherited by his widow. But encouraged by white friends, Scott sued for his freedom on the grounds that he had lived so long in free territory.

The questions before the Court were whether Scott was a citizen of the United States with a right to sue in federal court, whether prolonged residence in a free state had made him free, whether Fort Snelling (part of the Louisiana Purchase, now in Minnesota) was free territory, and whether Congress could enact a law that banned slavery in the land acquired in the Louisiana Purchase.
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Chief Justice Roger Taney wrote the majority opinion and ruled that because Scott was not a citizen of the United States he did not have standing to bring suit. Taney argued that when the Constitution was ratified, citizenship “was perfectly understood to be confined to the white race and that they alone constituted the sovereignty in the Government.”
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Thus, blacks were not citizens. The opposite, however, was true, as Abraham Lincoln pointed out in a speech on June 26, 1857. Lincoln cited the dissenting opinion of Supreme Court Justice Benjamin R. Curtis, who showed, “that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free Negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had.”
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In other words, the “facts” Taney used to support his conclusion were simply wrong.

As for Scott’s residence in free territory making him free, Taney rejected that argument, but with little explanation. He devoted only one page of his fifty-five-page opinion to the subject.
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On the final point, Taney concluded that the Fifth Amendment prohibited people from being deprived of life, liberty, or property without due process, and because slaves were property, any congressional ban on slavery in the territories of the Louisiana Purchase was unconstitutional because it would be a denial of property without due process.
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But Taney’s ruling ignored Article IV of the Constitution, which, as Professor Michael McConnell (now a federal judge) has pointed out, “vests in Congress the power to adopt ‘all needful Rules and Regulations’ for the governance of the territories, and nothing in the language or history suggests that decisions about slavery are an exception. Under traditional canons of constitutional interpretation, the Court should have given effect to the Missouri Compromise and declared Dred Scott a free man.”
¹³
Taney presumed, in McConnell’s words, “that a statute can be unconstitutional because it violates unenumerated rights,”
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in this case an unenumerated right to slavery. With typical activist flair, Taney overruled Congress’s power to ban slavery in the territories and imposed his own view on the nation.

McConnell quotes Justice Curtis’s dissenting opinion in
Dred Scott
: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean.”
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This is precisely the problem we face today.

In 1896, in
Plessy v. Ferguson
, the Supreme Court examined the constitutionality of a Louisiana law requiring railway companies carrying passengers in their coaches to provide equal but separate accommodations for the white and colored races.
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The law was challenged under the Fourteenth Amendment, which prohibits the states from “making or enforcing any law which shall abridge the privileges and immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.”
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The majority, led by Justice Henry B. Brown, upheld the constitutionality of the Louisiana statute. Brown wrote, “We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia.”
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In
Plessy
, an activist Supreme Court upheld a state law that mandated segregation, and forced a private industry (in this case the railroads) to separate individuals on account of race. By failing to invoke the plain language of the Fourteenth Amendment, the Court inserted its own segregationist version of what was just. Like
Dred Scott
, the Court’s decision would have terrible consequences. The doctrine of “separate but equal” was the law of the land for the next fifty-eight years, until the Court reversed course in the 1954 decision
Brown v. Board of Education
.
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In 1944, in
Korematsu v. United States
, the Supreme Court upheld executive orders (issued by President Franklin Roosevelt) establishing military authority for the forced internment of Americans during World War II.
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The Court’s opinion, only some twenty pages long, was devoid of any legitimate constitutional basis for upholding Roosevelt’s orders. More than 110,000 law-abiding individuals, mostly Japanese Americans and Americans of Japanese ancestry, were removed from their homes on the West Coast, relocated to camps in the interior of the country, and detained without cause. The Fifth Amendment states that “no person shall be…deprived of life, liberty, or property without due process of law.”
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If this wasn’t a violation of the Fifth Amendment, then what is? Rather than applying the clear language of the Constitution, this activist Court simply upheld FDR’s policy. Indeed, the Court dismissively concluded that war demands sacrifices and that certain groups will have to bear certain burdens.
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Given the sheer inhumanity of these decisions, it is difficult to understand why so many regard the Supreme Court as the most moral and just of the three branches of government. These cases are crucial to understanding the danger inherent in judicial activism. When the judiciary utilizes outcome-determinative reasoning, rather than adhering to the Constitution, the result can be catastrophic. Activist Supreme Courts have justified slavery, segregation, and racism. They helped precipitate the Civil War and set back race relations for more than a century. But instead of learning the painful lessons of the past—that the Constitution must guide their approach to the law—several current Supreme Court justices are no less committed to judicial activism.

Recently, Justice Anthony Kennedy, in a 2003 speech to the American Bar Association, spoke out against federal mandatory minimum-sentencing laws that the courts—and Kennedy—are obliged to uphold: “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.”
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Kennedy again decried the Federal Sentencing Guidelines in testimony before the House Appropriations Committee when he said, “I do think federal judges who depart downward are courageous.”
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