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February 03, 2003

Activist judiciary versus the rule of law

Very interesting piece commorating the 30th anniversary of the Roe v. Wade decision by Christopher Caldwell in the New York Press.   While I don't want to get into the specifics of the abortion issue, Caldwell made some useful points about the impact Roe v. Wade has had on our constitution and political system.   (As for abortion, I am -- somewhat reluctantly -- pro-choice or against criminalizing abortion.   But that is a discussion for some other time.)

Here is an excerpt from Caldwell's article:

... Making the Supreme Court–and not Congress–the custodian of abortion rights has put these rights on shaky ground. You can chant "Roe v. Wade is the law of the land" all you want, but that doesn't change the fact that it’s not a law but a court decision. And this is not the biggest problem with our abortion regime. The biggest problem is that it has politicized the court on all matters, not just abortion, turning it into a mini-legislature, with democracy-warping effects. The entire moral and legal system governing sexual relations between people of childbearing age is now contingent on which of the nine sitting justices dies first, or whether George W. Bush wakes up with indigestion the next time he has to nominate someone. The result is that there really is no Supreme Court anymore. It’s more a super-Senate, which is elected by the (regular) Senate, in much the way that the (regular) Senate was, up until the 17th Amendment, elected by the State houses. It was acting in this super-Senate capacity that the Supreme Court decided the last presidential election. It ruled as wisely as it could have under the circumstances, but the circumstances weren’t exactly designed to enhance the court’s legitimacy as a court.

As an elective branch of government, the court over the last two decades has evolved its own two-party system, which pits the Abortion Party against the Anti-Abortion Party. In one of the unsung historical turning points of the last election, Al Gore gave formal sanction to this arrangement by violating a stubborn taboo. Asked in one of the debates the hackneyed, cliche-inviting question of whether he’d have a "litmus test" for Supreme Court nominees, Gore broke form. Rather than just respond with the usual palaver about just wanting justices who would "apply the law of the land," Gore said he sure as hell would apply a litmus test, though he continued to shy away from the term.

In so doing, he lifted American presidential politicking out of a slough of hypocrisy. But he also condemned the Democrats to stand forever as the party of legislative abdication and politicized law...

I would argue that the consequences for our body politic of this "legislative abdication and politicized law" have been profoundly negative. Having our court system evolve into a sort of "super legislature" that can (and does) effectively pass its own laws that are beyond the review of the Legislature or Executive branches of government, has transformed our government into one that is:

  • Less democratic: Federal judges, unlike Senators, are appointed for life. Therefore they are largely insulated from political pressures and do not have to answer to the wishes of the electorate.

  • Resistant to change: the legal system, based as it is on precedent, is a very poor instrument for designing social policy. Good policymaking should be experimental and fact-based. New, innovative approaches should be tried to solve social problems, but it the solutions don't work (or have negative effects) other policies should be tried. Having laws written by judicial decision inhibits this feedback between expectation and experience.

  • Less civil: the constitutional system of "advice and consent" whereby the Senate reviews and has veto power over judicial appointments has taken on an importance far beyond what the founders had intended. Instead of appointing judges, who are only entrusted with interpreting the law, the Senate is now being asked to approve the (lifetime) appointment of individuals who will have almost virtually unchecked power to create and enforce laws. Given the issues at stake, no wonder each appointment to the Supreme Court results in a no-holds barred political brawl, complete with Borkings, "high tech lynchings", or stealth nominees (think Souter).

Regardless of whether you approve or loathe the direction an activist judiciary has taken our country over the past 40 years, these non-legislative shortcuts to social reform have have seriously damaged our political and constitutional system.   Putting this particular genie back in the bottle is going to take a long time.

February 3, 2003 at 03:30 PM | Permalink


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