Washington Bulletin: Pledge Drive - What Congress should do.

National Review Online ^ | June 28, 2002 | Ramesh Ponnuru

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It's been six years since one decision by a federal judge has kicked up this much controversy. In 1996, Judge Harold Baer Jr. threw out evidence in a cocaine case because the police had searched a car only because, when they approached it, four men started running away from it. Running away from the police, Baer ruled, was perfectly reasonable behavior for black men, not suspicious in the least. After Bill Clinton, Bob Dole, and pretty much everyone else denounced him, Baer reversed himself.

Ninth Circuit judges Alfred Goodwin and Stephen Reinhardt are getting the Baer treatment this week. The political world arose as one to denounce their ruling that it's unconstitutional to ask school kids to recite the Pledge of Allegiance. "Ridiculous," "absurd," "outrageous," and "wacko" are all words that have been used. Goodwin appears to be reacting much as Baer did. He has now stayed the implementation of his own ruling.

The judges deserve better. In the context of the church-state case law that the Supreme Court has built up over the last 55 years, their ruling was, at the very least, defensible. They are no more "wacko" than it is. One might call Goodwin and Reinhardt the Peter Singers of church-state jurisprudence. They follow its premises to their logical conclusions even when political prudence or residual common sense restrains most of their colleagues on the bench.

And while the decision can certainly be faulted for exhibiting a certain judicial arrogance, so can any number of judicial decisions that have aroused less controversy — such as, for instance, last week's ruling on the execution of the mentally retarded.

It is because outrage against judicial misrule is so rare, however, that conservatives have to make the most of it when it appears. That means using the outrage as a "teaching moment" for the public and elected officials alike and, if possible, using it to actually do something about excessive judicial power.

Since the pledge decision is a specific instance of a more widespread judicial habit, the first thing that conservatives should do, in their teaching role, is to stop painting this decision as the work of two isolated wackos and to imply that everything will be just fine once they're reversed. (To its credit, the Republican Study Committee, a group of House conservatives, has made this point.)

Second, the Democrats should not be let off the hook by going to the House floor or the well of the Senate to recite the pledge of allegiance. They support judges who are likely to issue decisions of this character, and they are willing to go quite far to block judges who would not issue such decisions, let alone judges who would roll back previous decisions of this character. Senate Democrats, especially, should be pressured to change their ways.

But they should also be asked to do something in response to the decision they say they find so egregious — something more meaningful than merely passing a resolution saying they think the pledge is constitutional.

The Congress has a range of options in dealing with a federal judicial decision that it regards as deeply mistaken. It can pass a statute attempting to undo the effects of the decision, as it did in the early 1990s when the Supreme Court created a right to burn the flag and denied a right to the ritual use of peyote. But the Court will just overturn the new statute — as it did in both of those instances.

Congress can propose a constitutional amendment to undo the bad decision. But that is an enormously difficult route, and if it is the only one then the check on the courts is very weak. And one wouldn't want to clutter the Constitution with clarifications every time the courts misread it.

Federalist 81 suggests that Congress should impeach judges who regularly exceed their constitutional powers. Most of the judges of the Ninth Circuit meet that description, and some of the Supremes do as well. But this solution may teach the wrong lesson — that the problem is a few bad apples, not a structural imbalance of power.

Finally, the Congress can use its power to limit the jurisdiction of the federal courts with respect to the issue in question (in this case, the Pledge of Allegiance). The power to limit the appellate jurisdiction of the Supreme Court is explicit in Article III, Section 2 ("the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exception, and under such Regulations as the Congress shall make"). The power of Congress to limit the jurisdiction of the lower federal courts is implied. Article III, Section 1, grants Congress the power to create the "inferior Courts," which has to include a power to say what these courts are to do and (therefore) to say, whether implicitly or explicitly, what they are not to do. (The Constitution spells out Congress's ability to limit the jurisdiction of the Supreme Court because the Constitution, rather than Congress, establishes that court.)

A simple majority of Congress and a presidential signature can enact a jurisdiction-stripping bill, in contrast to a constitutional amendment. Such a bill would be more effective than a statute. And it would reduce the power of the judiciary rather than merely recall a few judges. Finally, the effort to pass a bill would be educational even if it failed to pass, since it would challenge prevailing misconceptions about the proper division of interpretive power over the Constitution.

There are three major objections to this bill. The first one, to which I've already given an implicit answer, is that it's an overreaction to one bad decision that the courts are already correcting. The second is that it's up to the courts to interpret the Constitution, and they should not be second-guessed even if they occasionally make mistakes. That's a misunderstanding that this bill seeks to correct. The third is that the bill would set a dangerous precedent. Congress would soon start passing bills to undo sound court decisions that it merely dislikes or that are merely unpopular. There are good reasons for taking this third objection seriously, but not for considering it fatal to the proposal. But no doubt there will be some other occasion for elaborating on that.

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Such a bill would be more effective than a statute.

Such a bill would be a statute. I think he means: "Such a bill would be more effective than a constitutional amendment."

Using Article III, Section 2 of the Constitution to constrain the Courts would definitely put a lot of panties in a wad.

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Robert Bork a few years back proposed a simple constitutional amendment to check abuse of the power of judicial review by the courts. Basically, he proposed vesting Congress with the power, by a majority vote of both chambers and signature by the President, to override ANY court decision that Congress believed was a misreading of the Constitution. This would provide a real viable check upon judicial fiat than having to laboriously amend the Constitution with a clutter of unnecessary amendments each time Congress believed the courts went to far. The aim of Bork's amendment was to vest the final say on political and social issues where it should be, with the elected representatives of the American people. The best response of Congress to the 9th Circuit decision would be to pass this constitutional amendment giving it the power to set a court straight in its reading of the Constitution.