Commentary Magazine

Judging the Justices

To the Editor:

Many of the contributors to your symposium [“Has the Supreme Court Gone Too Far?,” October 2003] bewail the imperial federal judiciary, so I was astonished that not one of them discussed what a meaningful political response might include. If the problem is as serious as they say, it is time to move beyond eloquent hand-wringing and to consider a number of actions that Congress might take.

In the first place, Congress presumably has oversight authority in relation to its financing of the federal court system. If executive-branch bureaucrats can be called to account before committees with jurisdiction over their budgets, it is hard to see why the judiciary committees of the House and Senate cannot question judges on the rigor and professionalism with which they carry out their far more important function of reviewing the constitutionality of legislation. Calling public attention to official over-reaching is a fundamental instrument of democratic governance. Why should Congress give the judiciary a pass?

Congress might also revive legislation, considered but not adopted in the 19th century, that would require an extraordinary majority of six or seven Justices to declare a legislative act unconstitutional. The principle that a single judge should not be able to override decisions of popularly elected representatives—as in the many five-to-four decisions of recent years—is both sensible and democratic.

Finally, Congress might propose a constitutional amendment ending the lifetime tenure of federal judges. Though Sanford V. Levinson mentions this idea in passing in the symposium, he might have added that it would stand solidly in the tradition of employing the amendment process to bring our centuries-old constitutional order into line with evolving democratic norms (as in the direct election of Senators and limiting Presidents to two terms). Indeed, of the three branches of government, only the judiciary has not had its 18th-century design modified. Life tenure for federal judges has by now left them in a peculiar class whose other notable members are third-world autocrats and the Pope.

Michael W. Schwartz
New York City



To the Editor:

Your symposium on the Supreme Court is rich in analysis but thin on recommendations for reform. More than 40 years ago, Sidney Hook brilliantly addressed this issue. “Those who defend the theory of judicial supremacy,” he wrote, “cannot easily square their position with a reasonable interpretation of the theory of democracy.”

Hook believed that we should adopt a version of a proposal first suggested by Chief Justice John Marshall:

The Justices of the Supreme Court should continue to function as they have done in the past, but with respect to congressional legislation, their opinion should have nullificatory force only when it is unanimous. The unanimity rule would apply only to the statutes of Congress and not to the states.

Indeed, Hook was prepared to go even farther:

I should favor an amendment incorporating Marshall’s suggestion which would give Congress the power to override a unanimous Court veto by a two-thirds vote of all elected members in both houses. Under such a provision, differences between Court and Congress would provide occasions for great national debate, somewhat in the way in which differences between the Congress and the executive do today.

Not one of the contributors to the symposium denies that the Supreme Court has grown enormously in power. Is it not time we had a national debate on Hook’s proposal?

William A. Donohue
Catholic League for Religious
and Civil Rights
New York City



To the Editor:

The election of judges has become common in many states. Why not try it for the federal judiciary as well? Of course, elected judges are often even more political than appointed ones. But electing them for definite terms would avoid the disruptive, ideological battles of Senate confirmation and would place judicial selection in the hands of the people.

W.H. Riddell
Tampa, Florida



To the Editor:

Cass R. Sunstein argues that Justice Antonin Scalia is a bad “originalist” because, in the recent affirmative-action cases, he failed to address the “careful historical studies” that have been done of the Fourteenth Amendment (referring, I suppose, to those of Charles Fairman, Alexander Bickel, and Raoul Berger). These studies suggest that the amendment’s drafters and ratifiers were, in Mr. Sunstein’s words, “entirely comfortable with race-conscious programs designed to help African-Americans.”

But Justice Scalia is primarily a “textualist”: that is, he tries to determine the meaning of the words used in a statute or in the Constitution rather than what the legislature or framers intended to accomplish. For a textualist, the historical materials referred to by Mr. Sunstein, which show the “comfort” with race-conscious programs felt by the framers of the equal-protection clause, are beside the point. What matters is that, to an ordinary reader of English today, the phrase “equal protection of the laws” in the Fourteenth Amendment is perfectly clear. If it was designed to countenance race-conscious programs, the framers chose a most opaque way of saying so. When the University of Michigan admits white students under one set of rules and black students under another (far more lenient) set, it is hard to maintain that the two groups receive equal protection under Michigan law.

Moreover, although most government classifications of individuals need only survive a test of “rationality,” racial classifications are in a different category. The Court has never held that they are absolutely void, but it has for many years maintained that they are “suspect,” subject to “strict scrutiny,” and that they satisfy the demand for equal protection only if they are a necessary (“narrowly tailored”) means of serving a “compelling governmental interest.” Few if any observers believe that Justice O’Connor’s examination of Michigan’s admissions policies in Grutter comes within shouting distance of strict scrutiny.

Yet Mr. Sunstein remains untroubled by the decision. He believes that the admissions policy of the Michigan law school was properly upheld in Grutter (and that the undergraduate admissions policy in Gratz should have been upheld) because similar affirmative-action programs have been adopted by state and federal institutions and apparently represent the will of the people (as distinguished from the will of unelected educational and bureaucratic elites).

Mr. Sunstein would not argue, I hope, that pervasive governmental practice overrides a clear command of the Constitution. Rather, he seems to think that such a practice should cause the Court to stay its hand when the constitutional command is ambiguous. A textualist would say that there is nothing ambiguous about the command of the equal-protection clause with respect to racial classifications, especially as it has been consistently applied by the Court.

Thomas F. Rutherford
St. Augustine, Florida



To the Editor:

Though I agree with Cass R. Sunstein that the principle enunciated in the Grutter ruling is correct, the decision itself is wrong on the factual record. Constitutionally, race can be a factor in the student-selection process as long as it is used on a case-by-case basis and the process does not degenerate into a quota system. But Michigan’s admissions data overwhelmingly established that the law school had a quota system in place. “Justified activism,” to use Mr. Sunstein’s terms, requires disapproval of Grutter on the facts, while “justified restraint” requires approval of the principle it enunciates.

Alan C. Kohn
St. Louis, Missouri



To the Editor:

Several contributors to your symposium express concern about the possibility that the Supreme Court will soon have occasion to impose gay marriage on the states. This supposedly follows, as a logical necessity, from the recent ruling in Lawrence on homosexual sodomy.

But a moment’s reflection should make clear that Lawrence would be a stunningly inapposite precedent for such a decision. Lawrence is grounded in a right to privacy, but marriage, in the eyes of the law, is not a private act; the legal definitions of marriage generally describe the union as the result of a tri-partite contract (with the state being the third party). Getting married is thus necessarily public in nature, and Lawrence does nothing to alter this legal reality.

Lauren Walter Berns, Jr.
St. Petersburg, Florida



To the Editor:

I must take issue with your contributors’ repeated citations of Bush v. Gore as an example of judicial activism. In that case, the Supreme Court affirmed the authority of the Florida legislature to establish laws for the conduct of a presidential election in that state. Article II, Section I of the Constitution gives state legislatures the power to establish laws for selecting presidential electors. Florida statutes, enacted by the legislature under that authority, require that recounts must be completed no later than seven days following an election.

In the 2000 election, the canvassing boards in the two Florida counties involved in the controversy had conducted one recount after another, while continuing to change the counting criteria in an attempt to find additional votes for Gore. When the seven-day deadline had passed with Bush still leading, the Justices of the Florida Supreme Court obligingly extended the deadline for recounting. In so doing they altered a provision of the state’s election law, and thus usurped the authority granted to the state legislature by the Constitution.

Arthur B. Nehman
Sarasota, Florida



To the Editor:

I am not sure what William Kristol means by his claim that at the time of her nomination Justice Ruth Bader Ginsburg “was every bit as ideological a figure as [Robert] Bork.” Perhaps he is alluding to her leading role in gender-discrimination litigation during the 1970’s and her service as general counsel of the ACLU while teaching at Columbia Law School.

But there is an important difference between the nominations of these two judges: Bork was enthusiastically supported by conservatives, whereas many feminists and liberals were at most lukewarm about Gins-burg, since they deemed her record as an appellate judge insufficiently ideological.

Jonathan L. Entin
Case Western Reserve
Cleveland, Ohio



Note: In Robert H. Bork’s contribution to the symposium, an editing error conflated the due-process clause of the Fifth Amendment with the due-process clause of the Fourteenth Amendment. We regret this error, which several readers kindly pointed out.—Ed.


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