High court opposites dazzling off the bench

Chicago Sun Times ^ | 10/25/05 | JOHN O'SULLIVAN

[Borges]

MELBOURNE, Australia -- Most legal reporters would burn their briefs to overhear U.S. Supreme Court discussions between Justices Antonin Scalia and Stephen Breyer, respectively the leading conservative and liberal minds on the court. They would additionally risk cruel and unusual punishments to sit in on a Scalia-Breyer debate on the hot topic of "judicial activism."

Yet a series of such debates took place over the weekend at a "Conversazione" held by the universities of Boston, Oxford and Melbourne.

Sixty years ago "judicial activism" was definitely not a hot topic in countries belonging to the Anglo-American legal tradition. Division of responsibility was then clear: Congress or parliament made the law, and judges interpreted it.

Then, 50 years ago in America the Warren Court began making laws on its own judicial authority. Thirty years ago Australia's high court followed suit. And in the last decade the British government -- the last stronghold of legislative supremacy -- passed a "Human Rights Act" that allows judges, in effect, to declare laws unconstitutional.

Allowing judges to overturn, re-write and invent laws means that they become what Shelley called poets -- "the unacknowledged legislators of mankind." The very latest judicial trend -- Justice Sandra Day O'Connor is a particular devotee of it -- is to root legal judgments in foreign precedents from countries with constitutions very different from the one hammered out in Philadelphia.

Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. They may hold very different opinions from the voters. As one speaker, Justice Dyson Heydon of the Australian high court, said in a public speech (the rules do not permit direct quotes from the Conversazione) some years ago: "When judges detect particular community values, whether in the Australian community or the 'international community,' as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold."

Indeed, given the decisions of the U.S. Supreme Court on such matters as racial preferences -- in which the court has consistently imposed "mainstream" solutions opposed with equal consistency by large majorities of American voters -- there is no doubt that U.S. judges are guilty of exactly that confusion.

Nor did their confusion end there. Those at the Conversazione favorable to judicial activism responded with two arguments. The first was that judicial activism did not really exist. It was a misleading or useless category of analysis and grossly exaggerated the trivial extent to which judges invade the sphere of elected politicians. The second held that judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe -- a necessary restraint on the potential oppression of minorities by majority rule, no less.

With lawyerly brilliance, some speakers even managed to combine both arguments: It was both vacuous and vital. Neither argument is persuasive. A judge who levies taxes to achieve equal educational outcomes across a state is doing something unelected and irremovable judges simply cannot do in a genuine democracy. To coin a phrase: No taxation without representation.

Equally, if the judges have the power to override the majority in order to defend minority rights, what is to prevent them from using that power to oppress both majorities and minorities? That is not a hypothetical point. Nazi oppression in 1930s Europe was greatly assisted by the fact that the judiciary, the bureaucracy, and other non-democratic elements in the German state were much more supportive of Hitler than the voters as a whole. Hitler never gained a democratic majority.

Moreover, under the rules of the democratic game, majorities can become minorities overnight in an election, whereas the rules of the judicial game insulate judges from popular disapproval.

These arguments were vigorously batted back and forth. But the debate moved to more subtle distinctions when Scalia and Breyer delivered their lectures. Both plainly like each other. Each cross-examined the other in witty exchanges. And they narrowed the difference between their positions considerably.

In particular, Breyer accepted that it was desirable to restrain the dragon of judicial "subjectivity" that Scalia would slay by requiring judges to interpret the actual words of the law or Constitution. It was, however, a modest and deceptive concession. As Breyer argues in his new book, Active Liberty, the "originalist" or "literalist" approach recommended by his opponent has its own problems of subjectivity: "Will canons of interpretation provide objective answers? One canon tells the court to choose an interpretation that gives every statutory word a meaning. Another permits the court to ignore a word . . . if otherwise the construction is repugnant to the statute's purpose."

This is a fair point. Some element of subjectivity is inseparable from legal and constitutional interpretation. Otherwise law enforcement would be a merely practical activity with little or no intellectual content. What is vital if judicial tyranny is to be avoided, however, is to narrow the scope of subjective interpretation as much as possible. And a judicial philosophy that allows the judge to draw upon a wide range of considerations in interpreting the law -- not excluding foreign precedents and constitutional declarations -- will in practice enable him to legislate rather freely under the guise of sophisticated interpretation.

Fortunately, the subtle distinctions and narrow scope of the Scalia-Breyer debate suggest that judicial activism is now on the defensive; unfortunately, with champions as skilled as Breyer, it still has a great deal of fight left in it.

[yoe]

The most important book on the subject of the US Supreme Court was published this year: Men In Black.

At this time the Supreme Court supports or endorses terrorist rights, flag burning, and thanks to Ginsburg, the importing of foreign law. The court has not followed the Constitution for several decades; the court is legislating from the bench, their opinions and in many cases ignoring the Constitution completely. Roe v. Wade is a prime example.

Term Limits for the Supreme Court and Term Limits for all politicians and that must start at the state level i.e., grassroots activity.