Men in Black: How the Supreme Court is Destroying America
by Mark R. Levin
Regnery. 288 pp. $27.95
The folk wisdom about the U.S. Supreme Court has long held that, in Mr. Dooley’s words, it “follows th’ illiction returns.” The proposition now before the people is that it does precisely the opposite: it ignores, overturns, and supplants the handiwork of our elected officials. This case is ordinarily, although not exclusively, made by outraged conservatives, and two of them have recently launched their laments from the New York Times best-seller list. Newt Gingrich, in Winning the Future (which I reviewed in the May COMMENTARY), argues that the “power grab by the Court is a modern phenomenon and a dramatic break from all previous American history.” Mark R. Levin makes a somewhat similar case, but in far greater detail.
A constitutional scholar, Levin is president of the Landmark Legal Foundation, a powerful presence on New York’s talk-radio station WABC, and, on the evidence of this book, a take-no-prisoners polemicist. Men in Black has an introduction by Rush Limbaugh and an afterword by former U.S. Attorney General Edwin Meese, and Levin kicks off his own argument with a slash-and-burn preface titled “Men, not Gods.” It features discreditable personal details about fifteen Supreme Court justices, from James Wilson (appointed by George Washington and jailed for debt while on the court) to Thurgood Marshall (appointed by Lyndon B. Johnson and said to have spent his afternoons watching soap operas).
From that point forward, Levin takes on the Court in fourteen spirited chapters, collectively intended to demonstrate that America has an ongoing political disaster on its hands. The country has been transformed, Levin says,
from the most representative form of government to a de-facto judicial tyranny. . . . 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.
Writing about Supreme Court decisions for large audiences is a tricky proposition, especially if, like Levin, one is a judicial conservative. What makes it tricky is the irresistible tendency of most educated laymen to judge Court decisions by their own intuitive feelings about what is right and wrong—and not by constitutional standards. In an opening chapter, “Radicals in Robes,” Levin works hard at getting his readers to focus on this elementary distinction. He asks them to identify with “originalists” who look to the text of the Constitution and the intent of its framers, and to reject the “activists” who construe the Constitution broadly and are more concerned with getting to their own “desired outcomes.”
Among the catastrophes created by the activists, Levin focuses on four landmark decisions. They are Dred Scott v. Sandford(1856), which held that a slave was not a citizen and therefore had no standing to sue for his freedom in court; Plessy v. Ferguson (1896), which upheld a “separate but equal” version of state segregation laws; Korematsu v. United States (1944), which legitimized the Japanese internments during World War II; and Roe v. Wade (1973), which legalized abortion throughout the land.
Next, Levin tees off on “judicial review,” i.e., the right of the Supreme Court to overturn legislation passed by Congress and state legislatures. Here he argues that no such right was contemplated by the Founding Fathers, and also that Marbury v. Madison (1803), the case that became the precedent for judicial review, was not intended by Chief Justice John Marshall, who wrote the opinion, to serve any such purpose.
Successive chapters assail the fruits of judicial activism across the political landscape: in thwarting public displays of religion; in discovering nonexistent “privacy rights” in the Constitution (and then, in a massive non sequitur, determining that privacy requires a right to abortion); in the Court’s rejection of state and local laws barring sodomy; in its long and bewildering romance with affirmation action and school busing; in its insistence on rewriting laws about the rights of immigrants (legal and otherwise), even though Article I, Section 8 of the Constitution explicitly assigns naturalization issues to Congress; in its willingness to open American courts to foreigners captured abroad as enemy combatants; in its stretching of Article I’s commerce clause to allow endless regulation of the private economy; in its unfathomable interpretations of the First Amendment free-speech clause (through opinions allowing flag-burning as legitimate political expression while restricting old-fashioned political speech when it runs afoul of campaign-finance law); and, finally, in unnecessarily intervening in the 2000 presidential election.
In dealing with this panoply of issues, Levin generally proves eager not only to berate the activists but to elucidate the logic behind their views and to track the incremental steps by which they took us (typically) from conservative legislation to desired liberal outcomes. How did it come about, for example, that illegal aliens gained a right to social-welfare benefits? We learn from Levin that in the early 20th century, the Court took for granted that citizens could be preferred over noncitizens in many different contexts. Thus, in 1915 it upheld New York’s right to reserve transit-authority jobs for citizens, while in 1927 it specifically rejected the proposition that the Fourteenth Amendment’s equal-protection clause applied to aliens.
But in the civil-rights revolution of the 1960’s and 70’s, powerfully abetted by the Warren and Burger Courts, this logic fell off the table. A decision written in 1971 by Justice Blackmun held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny”—a standard, often impossible to meet, requiring legislators to demonstrate a “compelling government interest” in any rules disadvantaging aliens. In 1976, the Court held unanimously that it was unconstitutional for the federal government to bar aliens from civil service jobs. In a critical 5-4 decision written by Justice Brennan in 1982, it held that Texas could not bar the children of illegal aliens from its public schools. The decision was based on the equal-protection clause, which meant that it also applied to social benefits for all aliens (including the illegals).
On my reckoning, Levin plainly wins most of the arguments he has engaged in this book, but in several instances he leaves his readers adrift. Many will surely be confused, for example, by the inclusion of the Plessy decision on his list of activist calamities. The opinion today looks like a racist outrage, but in 1896 it surely did not exemplify activism on the march. It represented Supreme Court deference to a state legislature—which is precisely what Levin’s overall position would seem to call for. Instead he contends that the Court should have invoked the Fourteenth Amendment’s equal-protection clause to strike down Louisiana’s “separate but equal” laws.
In a world where segregation was taken for granted, and “separate but equal” came across as relative enlightenment, any such opinion would have been activism squared. So what is Levin up to? My own hunch is that he senses a debater’s need occasionally to embrace causes dear to liberals (as he also does in attacking Bush v. Gore), thereby establishing that his brand of judicial conservatism is not just a stalking horse for political conservatism. But the effect is a bit of a muddle.
Far more disappointing are the book’s shaky responses to two critical questions. The first is: why has the Court become so chronically activist? Near the end of Men in Black, Levin finally gets around to this question in a chapter titled “Liberals Stack the Bench.” His answer mainly has to do with assorted plots by Senate Democrats, in league with Left-liberal pressure groups and Left-liberal editorial writers, all conspiring against conservative nominees. The chapter also complains mightily (and plausibly) about the unfairness of Senate rules that can prevent an up-or-down vote on obviously qualified candidates.
But none of this responds to the case Levin himself has laid out in his earlier chapters, which depict an institutional bias toward activism by sitting judges, many of whom (including seven of today’s nine members) were appointed by Republican Presidents. Indeed, many of the Justices prominently identified with activism in the modern era—including Earl Warren, William Brennan, and Harry Blackmun—were Republican nominees and were expected to be judicial conservatives. Why are there so many surprises after confirmation, and why are all the surprises in the same direction?
A related question: how does a Robert Bork (Yale law professor, solicitor general of the United States, appeals-court judge) come to be identified as “outside the mainstream” and rejected by the Senate while a Ruth Bader Ginsburg (movement activist, director of the ACLU’s Women’s Rights Project) sails through the confirmation process without controversy? The answers to these question are far from clear, but one would expect Levin at least to acknowledge their existence.
A final question: what do we do about activism run amok? Levin says up front that we do not need to put up with the abuse of power, but he does not deliver much in the way of specific remedies. In a penultimate chapter on “Restoring the Constitution,” he considers several possibilities. One is more frequent use of the cumbersome impeachment process, which he sensibly views as “ill suited for a systemic reform of the judiciary.” In another approach, Congress would incorporate limits to judicial review in new legislation—something it has already done in a few cases (e.g., the Marriage Protection Act). But here the problem, as Levin admits, is getting the Court to abide by these new limits on its role.
Having discussed these and other possibilities at length, he finally serves up his own proposal in a single sentence: “The most meaningful step Congress could take would be a constitutional amendment limiting the Supreme Court’s judicial power by establishing a legislative veto over Court decisions—perhaps a two-thirds vote of both houses.” But this comes perilously close to just giving up. Constitutional amendments, which themselves require two-thirds votes in both houses, plus ratification by three-quarters of the state legislatures, are today nearly impossible to pass in the absence of a landslide national consensus, which manifestly does not exist in this case.
The awful truth is that Levin, and quite a few others who essentially accept his analysis, do not exactly know what to do about the problem he has put onstage. Which suggests it will be around for quite some time.