Posted on August 10, 2002

by

Daniel Clark

Liberal Democrats detest judicial activism. Really they do. Just ask Hillary Clinton. In a July 23^rd speech to something called the American Constitution Society, the Illinois-born New York senator from Arkansas described our current Supreme Court under Chief Justice William Rehnquist as an activist court run amok.

"Evidence of judicial supremacy is not hard to find," she explained. "In addition to installing a president, the Supreme Court has invalidated acts of Congress at the most astounding rate ever in our nation's history. ... The Warren Court, widely regarded as an 'activist' Court, invalidated federal laws in about 20 cases over a 16-year period, slightly more than one a year. In contrast, the Rehnquist Court in the last eight terms alone has struck down acts of Congress in no fewer than 32 cases, a rate of four cases a year. By any measure, the current Court is one of the most activist, if not the most activist, Supreme Court ever in American history."

Well, not by any measure, exactly. In fact, the one measure she left out was the actual definition of "judicial activism." Mrs. Clinton applies that term to the amount of legislation that is blocked by the Supreme Court, without any regard for whether or not the laws involved are constitutional. "Judicial activism" is when the judiciary usurps the power of the legislature by creating law on its own. What the former First Lady describes, to the contrary, is the Supreme Court doing specifically what the Constitution assigns it to do.

Mrs. Clinton further complained that those 32 federal laws the Rehnquist Court has struck down include "the first cases in sixty years where the Court has imposed a substantive limit on what Congress can and cannot do under the commerce clause." Of course, anybody who's truly concerned about judicial activism will immediately recognize the commerce clause as the activists' favorite tool. The Constitution itself strictly limits what can be done under the commerce clause [Article I, Section 8], which says only that, "The Congress shall have the power to ... regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Judicial activists have expanded this clause to claim a federal role in any matter than one might argue would impact two or more states, whether it really has anything to do with "commerce" or not. Striking down statutes that are based on that interpretation is exactly what the Supreme Court is constitutionally bound to do.

For example, in the 1995 United States v. Lopez case, the Rehnquist Court ruled 5-4 that the commerce clause provided no constitutional justification for a law called the Gun Free Zones Act of 1990. It was dissenting Justices Stevens, Souter, Ginsburg and Breyer who were the judicial activists, in that they willfully disregarded the actual language of the Constitution in order to arrive at the conclusion they desired. "Commerce" is trade on a large scale, as between states or nations. In that context, gun control laws are completely irrelevant.

Sen. Clinton condemned the Rehnquist Court for "installing a president," in Bush v. Gore, but again, it was the most liberal justices, who formed the four-vote minority in that case, who were the judicial activists. All the majority did was overturn an act of judicial activism by the Florida Supreme Court, which had decided to reject the written election laws of its state, and make up new ones of its own.

Article II Section 1 of the Constitution says, "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors ... " But the Florida court took this power away from the legislature, and granted it to itself, the judiciary, when it decided to allow the recounts to continue beyond the legal deadline. What the U.S. Supreme Court did was to return the right to determine Florida's election laws to the state legislature, in accordance with the Constitution.

In a dissenting opinion, Justice John Paul Stevens wrote, "The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers." In other words, Florida law means whatever the Florida Supreme Court says it does.

Stevens' dissent was joined by Justices Ruth Bader Ginsburg and Stephen Breyer, both appointees of Hillary's husband. They are representative of the type of judge that Sen. Clinton wants to see nominated -- the type that believes that the judiciary decides what the law means, and the actual law, as written by the legislature, should only be taken as a suggestion. Those judges are practitioners of judicial activism, and Sen. Clinton wants more like them.

Mrs. Clinton's speech was a part of a broader Democrat strategy to diffuse public anger over liberal judicial activism, by charging that conservative judges are activists too. On the very same day that she spoke, her colleagues in the Senate Judiciary Committee flung accusations at Priscilla Owen, who President Bush has nominated to the Fifth Circuit Court of Appeals.

Committee chairman Patrick Leahy (D, Vt.), presented a list of cases (apparently provided to him by the People for the American Way), in which Owen wrote dissenting opinions that were alleged to reveal her activism. Sen. Dianne Feinstein (D, Calif.), dutifully following her script, remarked, "It seems to me you -- and maybe this is what being an activist means -- that you worked to come out where you want on your opinion."

The report on Owen's "activism," which can be found on the PFAW's website, is remarkably short on specifics regarding the law. It mostly infers fault on her part because she dissented more frequently than all but one of the other judges, and because her opinions were sometimes criticized by other Republicans on that court, like current White House counsel Alberto Gonzales. This falls into line with Sen. Clinton's contention regarding Bush v. Gore, that "judicial activism" is defined by a judge's disagreement with other judges, rather than with the law.

The one dissent of Owen's that her critics find most egregious involves the Texas law that G.W. Bush signed as governor, which requires the notification of the parents of minors who seek abortions. This law includes a bypass procedure, by which a girl could receive a court order allowing an abortion without parental notification, if the situation met one of three criteria: (1) that she is "sufficiently well informed" about the procedure; (2) that parental notification would not be in her "best interest"; or (3) that notifying her parents could lead to an abusive situation (including "emotional abuse," naturally).

These guidelines demand a subjective determination on the part of the judges. In Judge Owen's opinion, the girl who'd tried to obtain a court order was not sufficiently well informed about abortion, it was in her best interest that her parents be notified, and that notification would not place her in danger of being abused. The majority arrived at different conclusions, but not ones that were any more valid.

A difference of opinion between judges does not necessarily mean that one is exercising "judicial activism" and the other is not, because the law does not always dictate what a judge's decision should be. For instance, the Fourth Amendment uses some terminology that is open to a wide spectrum of interpretation. A liberal justice might interpret "unreasonable searches and seizures" more broadly than a conservative judge would, and "probable cause" more narrowly, but both judges' opinions would be equally legitimate, because the elasticity of the language allows for both interpretations. The same is not true of the part of that same amendment that says a search warrant must specify "the place to be searched, and the persons or things to be seized." A warrant that authorized the seizure of "stuff" would be unconstitutional regardless of the philosophical disposition of any judge.

People for the American Way knows that Priscilla Owen is really not an activist judge. If she were, the group wouldn't be so bent on blocking her nomination. The Constitution is the natural enemy of the PFAW. This organization was founded by people who argue that the First Amendment requires that the free exercise of religion be banned. Their position on the Second Amendment is either that it has expired, or that it never really meant what it says it means in the first place. They insist that the Constitution contains something called "abortion rights," although these rights can't actually be seen there, except by a handful of supernatural judges endowed with X-ray vision.

Ditto that for the American Constitution Society to which Mrs. Clinton spoke. If there's any organization in the U.S. less appropriately named than the PFAW, it's this one. The president of the ACS, Peter Rubin, once argued before the Supreme Court that "family planning clinics" have a First Amendment right to receive taxpayer funding while "counseling" women to have abortions. Laurence Tribe, who was a member of Al Gore's legal team during Bush v. Gore, is on the board of advisors, along with Abner Mikva, the former counsel to President Clinton, and former New York Governor Mario Cuomo. For such an assembly of people to feign concerns about preserving the Constitution is nothing short of farcical.

These groups aren't afraid that President Bush will appoint judicial activists; they're afraid he'll appoint judges who read the law as it is written, just like he promised. If our federal courts begin upholding the real Constitution, then the virtual constitution that has wafted from the imaginations of liberals like those at the PFAW and the ACS will dissipate into history.

The Democrats and their supporters hope they can nullify the issue of judicial activism simply by nullifying the term, but there's more to their problem than just a catchy slogan. Liberals can accuse conservatives of judicial activism, but that won't make anyone think that both sides are equally guilty of miscarriages like the Ninth Circuit Court's declaration that the Pledge of Allegiance is unconstitutional. You don't have to be a member of the Vast Right-Wing Conspiracy to recognize that decision as typical liberal dingbattery.

Hillary Clinton cannot distance herself from that ruling, because she embodies the philosophy behind it. After all, it was she, according to MSNBC's Chris Matthews, who pledged allegiance "to the America that can be." (leading Matthews to remark, "What, are we on probation?") For her to respond to the Pledge controversy by accusing Republican appointees of judicial activism is like the pot calling the kettle a pot. Liberal Hillary tells the liberal American Constitution Society that conservative judges are too liberal, and for this reason, liberals should oppose them bitterly.

In an effort to confuse the public about judicial activism, the Democrats seem instead to be confusing themselves. It sort of makes that butterfly ballot problem a little more understandable.

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