Law has lost its soul and become jungle.
—Bertrand de Jouvenel1
Law is more than the sum of all the statutes, regulations, constitutional provisions, and judicial interpretations currently in force. What gives them all coherence, and the public support without which they could not be enforced, is that they are expressions of an underlying notion that we live by rules rather than by either arbitrary edicts or anarchy. The ideal is “a government of laws and not of men,” and while neither this ideal nor any other has ever been realized 100 percent, such an all-or-nothing standard would trivialize out of existence virtually everything that matters in life.
There is a fundamental difference between a society where a ruler can seize the wealth or the wife of any subject and one in which the poorest citizen can refuse to allow the highest official of the land inside his home. There is a fundamental difference between a time when the great English jurist Coke cringed as King James threatened to beat him physically with his own hands—resistance being treason, punishable by death—and a world in which the Supreme Court of the United States could order President Nixon to turn over evidence to a special prosecutor. No clever trivializing can erase these differences. Centuries of struggle, sacrifice, and bloodshed went into creating the ideal of a government of laws superior to any ruler or political organ.
Law in this sense is more than any given ensemble of particular edicts and rulings—such edicts and rulings being common to all sorts of societies, from the freest to the most totalitarian. But law in the full sense cannot exist under totalitarianism, as the totalitarians themselves acknowledge. The point was well made by a Soviet writer who said, “communism means not the victory of socialist law, but the victory of socialism over any law.”2 There was likewise no law restraining Hitler, any more than any law or any concept of law limited what Stalin could do. Similarly, a sultan of the Ottoman Empire could order any person executed on the spot at any time for any reason, or for no reason.
By “the rule of law” is not meant simply that edicts are enforced but that only laws set forth in advance can be used to punish and that only legal enactments conforming to some accepted principles—set forth in a written constitution in some countries—will be enforceable. Every society has its rules but not every society has the rule of law. When Bertrand de Jouvenel said that law had lost its soul, he meant that the grand concept of law was being eroded away, or prostituted, until it became nothing more than an ensemble of rules and rulings, changeable without notice, and reflecting little more than an arbitrary exercise of power—the very antithesis of law. This is the direction in which American law has been driven by those with the vision of the anointed.
The rule of law and the vision of the anointed are inherently at loggerheads. The judge who carries out the law as written is the agent of others, and the law that emerges from the political process in a democratic country reflects the values and experiences of the benighted, not the anointed. That judges with the elite vision should find such a situation unduly constricting, if not intolerable, is consistent with the premises of their vision. Only by going beyond the law as written can they impose their superior wisdom and virtue, and in the process preempt the decisions of others. Creative and adventurous “interpretations” of the Constitution, statutes, and contracts give judges that power. While those with the tragic vision decry the presumptions of judges who circumvent the systemic processes of society—as expressed in economic transactions, social practices, and legal traditions, for example—those who assume a more sweeping capability are little deterred by any fear of inadvertently deranging these systemic processes.
Perhaps the classic expression of the objection to the rule of law was by socialist writer Anatole France, when he said sarcastically: “The Law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.”3 The differential impact of the same laws on people in different social circumstances has long been a key reason given for departing from the ideal of law and government as a set of impartial processes, and instead making law and government instruments of a set of policies directed toward prescribed social results. Moreover, these prescribed results are often conceived within a framework of a cosmic perspective on justice, in which it is not sufficient to treat everyone the same after they enter the legal system, if they entered with preexisting inequalities that must be compensated for, in order to achieve “real” justice. Such are the ambitious goals—the vision of the anointed—behind the stretching and bending of the law that has become known as “judicial activism.”
It is in seeking cosmic justice that the law has become less and less law and more and more a series of ad hoc pronouncements which the judicial activists call “evolving standards” or “a living constitution.”
Seeking a range of justice reaching beyond the narrow confines of the traditional legal system, or the Constitution as historically written, takes many forms. For example, the Constitution’s plain and simple statement that no person “shall be compelled in any criminal case to be a witness against himself” has been stretched in legal theory to cover the following situation:
The police arrested Eugene Frazier for the robbery of Mike’s Carry Out. After they advised him of his rights and let him read a copy of the Miranda warnings, Frazier signed a “Consent to Speak” form and told an officer that he understood his rights and did not want a lawyer. When an officer began questioning him about Mike’s Carry Out, Frazier interrupted and admitted to robbing High’s Market. The policeman started to transcribe Frazier’s remarks, but the defendant stopped him, saying, “Don’t write anything down. I will tell you about this but I don’t want you to write anything down.”
The officer put down the pad and continued listening in silence as Frazier went on about the High’s robbery. After about five minutes of this, Frazier confessed to the robbery of the Meridian Market. Two hours or so later Frazier ended the questioning, stating, “That’s it; that’s all I am going to tell you.” When the police asked the defendant to write out his confession or to sign a typed summary, Frazier refused. “No, I’m not going to sign anything,” he said.4
When Frazier’s conviction for the robberies he confessed to was appealed to the District of Columbia Circuit Court of Appeals, according to Chief Judge David Bazelon, “we were troubled” by the robber’s apparent misconception that his confession did not count if it were not written down. Therefore the burden of proof was on the government to show that Frazier “intelligently and knowingly” waived his constitutional right—and the case was sent back to the trial court. When the case came back up again and a majority on the Circuit Court of Appeals voted to uphold the conviction, Judge Bazelon dissented on grounds that using the confession “denied people like Frazier genuinely equal treatment before the law” because Miranda warnings ought to be made “so clear that no one possessing even minimal intelligence could possibly misunderstand them.”5
Although Judge Bazelon did not ultimately prevail in this particular case, it is revealing for the kind of reasoning which caused the Court of Appeals to send the case back to the trial court in the first place. At no point was the robber “compelled to be a witness against himself,” in the words of the Fifth Amendment. This whole issue arose because judges went beyond the Fifth Amendment, in pursuit of a more cosmic view of justice. Judge Bazelon stated the issue as so many others with the vision of the anointed have stated it: “Educated, respectable suspects ordinarily know of their rights to be silent and to retain a lawyer.”6 In short, the task of the courts was conceived to be not simply to treat everyone equally within the confines of the legal system but to offset preexisting inequalities. They were to pursue cosmic justice.
The cosmic perspective of course extends beyond the law. But, in whatever field it appears, its adherents are quick to say that people did not really have a “free choice” in what they did. Thus to Noam Chomsky “freedom is illusion and mockery when conditions for the exercise of free choice do not exist”—and those conditions do not exist for “the person compelled to sell his labor power to survive,”7 i.e., for anyone who works for a living. Any circumstantial constraints or potential consequences hanging over people’s decisions makes their choices not “really” free. But this conception of a free choice requires an unconstrained universe. Only God could have a free choice requires an unconstrained universe. Only God could have a free choice—and only on the first day of creation, since He would be confronted on the second day by what He had already done on the first.
Constitutional right after constitutional right has been stretched far beyond anything encompassed by those rights when they were written—but only when the rights in question were consonant with the vision of the anointed. Where a constitutional right goes counter to, or inhibits, some aspect of that vision, that constitutional right is far more likely to be reduced or ignored. For example, the Fifth Amendment’s prohibition against anyone’s being “twice put in jeopardy” for “the same offense” has been judicially interpreted out of existence in the case of policemen acquitted in state court of criminally mistreating arrested suspects such as Rodney King and then retried in federal court for the same acts as civil offenses. Likewise, the Fifth Amendment’s protections of property rights have been routinely overridden by other considerations—almost any other consideration—in numerous cases.8 The selective indignation of the anointed is reflected in legal theory that is selectively cosmic.
Even if cosmic justice were sought equally and consistently for all, however, it would still conflict disastrously with the law of diminishing returns. The proliferation of new technicalities in the criminal law, each designed to eliminate various residual biases and uncertainties surrounding arrest and trial, beyond some point risks far greater dangers to the public from criminals out on bail awaiting trial when there is an overcrowded court system taking longer and longer time to complete each trial, due to these new technicalities. A few years after the criminal justice revolution of the 1960s, a California appellate judge said:
It is with almost melancholy nostalgia that we recall how only five years ago it was possible to sustain a judgment of conviction entered in such a clear case of unquestionable guilt and to accomplish it without undue strain.9
Judicially expanded “rights” to appeal state court decisions to the federal courts led to an increase in such appeals for habeas corpus from fewer than a hundred in 1940 to more than 12,000 by 1970. Commenting on this explosive growth, a federal appeals court judge in New York noted the effects of this expanded role of the federal judiciary in second-guessing state appellate court decisions:
For all our work on thousands of state prisoner cases I have yet to hear of one where an innocent man had been convicted. The net result of our fruitless meddling in search of the non-existent needle in the ever-larger haystack has been a serious detriment to the administration of criminal justice by the states.10
This is not to say that there are literally no innocent men ever convicted in a country with a quarter of a billion people. It is simply to raise the question whether extended federal second-guessing of state appellate courts will turn up many or any—and at what cost, not only in terms of money, but in terms of the increased number of innocent people sacrificed as victims of violent criminals walking the streets longer and longer, while legal processes grind on slowly and at seemingly interminable length. In short, while saving some innocent individuals from a false conviction is important, the question is whether it is more important than sparing other equally innocent individuals from violence and death at the hands of criminals. Is saving one innocent defendant per decade worth sacrificing ten innocent murder victims? A hundred? A thousand? Once we recognize that there are no solutions, but only trade-offs, we can no longer pursue cosmic justice, but must make our choices among alternatives actually available—and these alternatives do not include guaranteeing that no harm can possibly befall any innocent individual. The only way to make sure that no innocent individual is ever falsely convicted is to do away with the criminal justice system and accept the horrors of anarchy. No one would advocate such a situation. That is simply the direction in which the legal system has drifted in pursuit of cosmic justice. Nowhere is the maxim that “the best is the enemy of the good” more painfully demonstrated than when violent felonies have to be plea-bargained down to misdemeanors because of the prohibitive cost of trying more cases in a system bogged down in proliferating technicalities growing out of a quixotic quest for cosmic justice. This is part of what Judge Macklin Fleming has aptly called, in the title of his book, The Price of Perfect Justice.11
Nothing is more of a search for cosmic justice than attempts to redress the wrongs of history, not simply for particular individuals wrongly convicted or victimized in some other way, but for whole categories of people whose ancestors’ misfortunes are to be redressed in the present generation. Given the innumerable factors influencing the current well-being or misfortunes of individuals and groups, the presumption of being able to disentangle all these factors and determine how much is due to the injustices of history is truly staggering. We have already seen in Chapter 4 how easy it is to confuse what is and is not a “legacy of slavery.” But the principle applies far more broadly. What would the people of Spain be like today if they had not been conquered by the Moors and then spent centuries of struggle to get free of Moorish rule? What would Egyptians be like if there were no Nile? Southern Asians if there were no monsoons? It would be difficult enough to reach an assessment that was defensible as intellectual speculation, much less a compelling conclusion by the standards of a court of law. Yet judges pursuing cosmic justice make sweeping assumptions about equally complex historical questions.
An ever more lengthy and complex jury-selection process likewise proceeds in defiance of the law of diminishing returns. Detailed questionnaires for jurors to answer—including highly personal questions which they are compelled to answer, in disregard of “privacy” rights which count for so much in other contexts—and the use of expensive consultants specializing in the selection of jurors are just some of the costs of this attempt to achieve a closer approximation to cosmic justice. But, even aside from the immediate delays and other costs, this complex process opens up the whole trial, verdict, and sentence to further challenges in the appellate courts, even when there is not the slightest doubt about the guilt of the defendant and when even his own attorneys no longer make any claim of innocence. All this is part of the cost of the quest for cosmic justice.
The general process of stretching and twisting the written law—and especially the Constitution—to reach results desired by judges has been called “judicial activism.” It is not only an example of the vision of the anointed in action, it is also a crucial mechanism by which other aspects of that vision—the cosmic justice being sought through affirmative action, for example—has been imposed as “the law of the land” when elected legislators would be reluctant to go as far as unelected judges. Like most phrases, like all of language in fact, the term “judicial activism” is itself a subject to varying interpretations and distortions. In the pattern of these interpretations and distortions, there is once more visible the vision of the anointed, not only in the way some litigants are treated as mascots or as targets, but also in the more general way that the exercise of power is shifted from the benighted to the anointed.
Activity, as such, is not the touchstone of judicial activism. There is nothing to prevent a judicial activist from being lazy or his opposite, the practitioner of “judicial restraint,” from being a dynamo of energy. Judicial activism cannot be quantified according to how many laws or lower court decisions are overturned, since it is the grounds on which they are overturned that defines judicial activism or judicial restraint. As with so much language, the phrase “judicial activism” is just an elliptical way of indicating a particular thing—but what that thing is does not depend on what can be extracted from isolated words. It depends on what concrete meaning those words have in the particular context in which they are used. This is nothing unusual. The word “shortstop” has a very different meaning in a photographic laboratory than it does on a baseball field and “closing” means something very different in real estate than it does in horse racing. Because evasion by trivialization has been as common a pattern among the anointed in discussions of judicial activism and judicial restraint as in other areas, it will be necessary to define these terms carefully before looking at the phenomena they represent.
Words like “due process,” “freedom of speech,” and other phrases from the Constitution might be interpreted in a sweeping variety of ways, if one simply relied on the dictionary meanings of those words and applied them according to one’s own sense of what that meant in practice. But these phrases existed and had a long history in the laws of England, even before the Constitution of the United States was written. Therefore the historical meanings of such terms, in the legal context in which they were used, were much more limited than all the conceivable meanings that one might derive from a dictionary and apply according to one’s own vision. Those who wrote the American Constitution were of course familiar with such terms as “due process,” “freedom of speech,” etc., from English law and indicated no intention of giving them different meanings from what those terms already had.
Those who today advocate “judicial restraint” define it as judges interpreting laws, including the Constitution, according to the meanings that the words in those laws had when they were written. Judge Robert H. Bork, for example, has said that judges should render decisions “according to the historical Constitution.”12 More broadly, Judge Richard Posner has written of the self-disciplined judge as “the honest agent of others until the will of the principals can no longer be discerned.”13 Justice Oliver Wendell Holmes saw that his job was “to see that the game is played according to the rules whether I like them or not.”14 According to Holmes: “When we know what the source of the law has said that it shall be, our authority is at an end.”15 In one of his Supreme Court decisions, Holmes said, “I am not at liberty to discuss the justice of the Act.”16 That was a cosmic question and he had no commission from the cosmos.
Those who argue for this view of the judge’s role—for “judicial restraint”—often say that judges should follow the “original intent” of laws in general and the Constitution in particular. Yet, ironically, this very phrase itself has been seized upon by opponents and given meanings far removed from that of those who use it. Professor Ronald Dworkin, for example, argues against original intent on grounds that “mental events” in the minds of legislators or writers of the Constitution are difficult or impossible to discern.17 But, of course, nobody voted on what was in the back of somebody else’s mind. What was enacted into law were the meanings of those words to others—in short, the public meaning of words. As Justice Holmes put it, the relevant question was “not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.”18 Those who have urged judicial restraint have been very explicit that they did not mean to delve into the psyches of lawmakers but to begin with the public meaning of the words that lawmakers used, as of the time they used them. For Holmes, legal interpretation of what someone said did not mean trying to “get into his mind.”19 What was needed was the public meaning of his words, not the subjective intentions or personal psychology of whoever used them. Holmes said: “We do not inquire what the legislature meant; we ask only what the statute meant.”20
In a very similar vein, Judge Bork wrote:
… what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.21
Despite these clear and unmistakable statements, from the time of Holmes to the time of Bork, gross distortions of this view have remained the rule rather than the exception among those with the vision of the anointed. Justice William J. Brennan, for example, said that judges following original intent would have to “discern exactly what the Framers thought,”22 and of course he found that impossible. Professor Stephen Macedo of Harvard objected to Bork’s views on original intent because “public statements often do not reflect actual intentions”23—as if this were either a revelation or relevant. Professor Jack Rakove of Stanford took a similarly condescending view of Attorney General Edwin Meese’s advocacy of judicial restraint by going into the subjective intentions of the writers of the Constitution—the fact that James Madison “approached the Convention in the grip of a great intellectual passion,” that he had “fear” of certain policies regarding property and religion, and that he “privately described” constitutional amendments in a certain way.24
Far more is involved here than a mere misunderstanding. Power is at the heart of the dispute. Although New York Times columnist Anthony Lewis wrote of the Constitution’s “expansive phrases that would be given contemporary meaning by each generation,”25 generations do not vote on the constitutionality of laws. Judges do. Thus the current generation’s decisions are not replacing those of a previous generation; judges’ decisions are replacing those of the current generation by imposing their own revision of what a past generation has said. The replacement of historical meanings by “contemporary meanings” is a major transfer of power to judges, not only from other branches of government, but from the people. It is an erosion of self-government and an imposition of the social vision of judges in its place. That the anointed should favor this is hardly surprising.
A constitution was created for a purpose, to prescribe and restrict what power could be wielded, by whom, and within what limits. Unlike the Constitution of England, which exists not as a tangible document but as a collection of traditions, the Constitution of the United States was written down to fix the limits of government power—not forever, but until an authorized change was made in an authorized way. The imperative words of the Constitution—“Congress shall make no law”—were clearly intended to convey a substantive meaning rather than simply to provide a “text” for judges to “deconstruct” and reassemble to mean whatever they wanted it to mean.
Judicial activists and the legal theorists who promote judicial activism seek to free judges’ decisions from the constraints of the Constitution as written and the limitations of legislations as passed. They seek judicial decisions which reach beyond these confines to encompass more sweeping more principles. Ronald Dworkin, for example, rejects a “strict interpretation” of the words in the Constitution because that would limit constitutional rights “to those recognized by a limited group of people at a fixed date in history.”26 In other words, judges are to be free to seek cosmic justice. According to Justice William J. Brennan, “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”27 To Chief Justice Earl Warren as well, the idea of a strict construction of the words of the Constitution was “ludicrous” and “a spurious issue” because of “ever-changing circumstances,” including circumstances “far beyond the vision of even the wisest of the Founding Fathers.”28
Similar statements abound throughout a large literature on legal theory. The stress placed on changing circumstances and on the need for legal changes to deal with them is a central part of the verbal fanfare over something that is not even at issue—for absolutely no one denies that there have been major changes since the eighteenth century. This verbal fanfare serves only to distract attention from what is in fact crucially at issue: Who is to make those legal changes and by what authority? Power is the issue—and the usurpation of power. The Constitution itself clearly contemplates legal changes—otherwise, why create a Congress to pass laws or a president charged with enforcing them, much less spell out a whole legal procedure for amending the Constitution’s own provisions?
The issue as regards judicial activism is not whether there shall be “change”—since no one is against generic “change”—but who shall wield the enormous power of prescribing the particular nature and direction of change and by whose authorization? More specifically, shall it be done openly by officials assigned this task by the Constitution and responsible to the voters, or shall it be done furtively by unelected judges using verbal sleight-of-hand to attribute to the Constitution things that the Constitution never said? The issue is preemption of power, not “change.”
What the rule of law means, among other things, is that certain questions have been settled, at least as far as the law is concerned. Therefore the citizens of the country can rely on “the law of the land” in their plans and actions, until such time as that law is explicitly changed by new statutes or constitutional amendments. The occasions of such change provide advance warning that we are all now living under different rules. Judicial activism makes all this radically different. Individuals and organizations discover only after the fact that they are violating “evolving standards”—such discoveries sometimes costing millions of dollars in damage awards. More important, loose interpretations of words in contracts, statutes, and the Constitution itself empower judges to reopen questions that were settled when these contracts, statutes, and the Constitution were written—imposing judges’ notions of what should have been done on what the parties concerned had decided to do. Far from defining the boundaries of governmental power and contractual obligations, judicial activism allows judges to second-guess the decisions made within those boundaries—and to call the decisions they dislike “unconstitutional.”
Much criticism of judicial activists’ decisions has centered on the merits or demerits of the particular policies imposed by such decisions. But, however much those policies may deserve criticism, the most fundamental damage done is not in these particular policies but in undermining the very concept and purpose of law itself. Freewheeling judges make the whole framework of law unreliable. One obvious consequence is that this facilitates legalized extortion when those with “deep pockets”—which are often only an accumulation from much shallower pockets of individual taxpayers or stockholders—are afraid to go into court to defend themselves against even the most frivolous or far-fetched claims for damages, for fear of what some judge or jury’s arbitrary notions or emotions might be on a given day. But forfeiting the benefits of “a government of laws and not of men” goes far beyond that. It goes to the heart of a free, self-governing society, which is being superseded by ex post facto laws deriving not from legislation but from judicial fiats. That the particular policy decisions imposed by judges may often be counterproductive is secondary.
Those who seek to have judges go beyond the document authorizing judicial power, and beyond the principles agreed to in that document, are seeking essentially cosmic justice. However much better cosmic justice might be, judges have no authorization from the cosmos, nor do human beings have cosmic capacities, even when they have cosmic presumptions.
One of the more remarkable defenses of judicial activism is that courts were “forced” to act because Congress, the president, or other authorities and institutions “failed” to act. Only by arbitrarily presuming that policy X must be enacted can the fact that all institutions except one believed otherwise be taken as a mandate for that single institution to impose policy X anyway. Only where the policy is one favored by the anointed is any such non sequitur likely to pass muster. The whole constitutional system of checks and balances—designed precisely to prevent any given branch of government from acting as sovereign—is thus blithely tossed aside by those who see the courts as legislatures of last resort for policies that reflect the vision of the anointed, but which cannot become law otherwise.
Although the great changes that have occurred over the centuries since the Constitution was written provide talking points for those advocating judicial activism, the particular judicial rulings which have sparked the greatest controversies in recent decades have involved things common and well-known when the Constitution was written: abortion, prayer in schools, the arrest of criminals, the segregation of the races, differential weighting of votes, and executions.29 Most of the great rhetorical flourishes about technological and other changes have no bearing on the particular controversies in which they are invoked. Nor is a long passage of time either necessary or sufficient to explain judicial activism. The Civil Rights Act of 1964 was passed during the lifetimes, and in some cases during their tenure on the Supreme Court, of those who voted with Justice William J. Brennan not to follow “a literal interpretation” of its words in the 1979 Weber case.30 The Supreme Court majority’s interpretation went so directly counter to the plain words of the Act that a dissenting justice likened the Court’s evasion of those words to the great escapes of Houdini.31
The same Justice Brennan who claimed elsewhere that discerning the original intent of lawmakers was virtually impossible,32 in this case saw lawmakers’ intent so clearly—Congress’ “primary concern” for “the plight of the Negro in our economy”33—that he disregarded the plain words of the Civil Rights Act, which forbade any racial discrimination in apprenticeship training programs, such as that which excluded a white worker, Brain F. Weber, in order to include black workers with lower qualifications. Nor can it be claimed that Congress had not thought of such possibilities, for the legislative history of the Civil Rights Act abounds in discussions of the possibility of “reverse discrimination”—and abounds in repudiations of any such policies.34
Among the amazing rationales for compensatory preferences for selected minorities to be imposed by courts is that such preferences merely offset previous preferences for members of the majority population. According to New York Times columnist Tom Wicker, “American life never was ‘even-handed, color-blind, non-preferential.’”35 But this again raises the question which arises in so many other contexts: Is the law to attempt intertemporal cosmic justice or simply apply the same rules to all in the only temporal realm in which it has jurisdiction—the present and the future? Moreover, is the decision to opt for intertemporal cosmic justice one for which judges have any authorization, either from the Constitution or from statutes passed by elected officials? Such straightforward questions are often evaded by being redefined as “simplistic.” A federal judge in Texas provided a typical example of this tactic:
The plaintiffs have contended that any preferential treatment to a group based on race violates the Fourteenth Amendment and, therefore, is unconstitutional. However, such a simplistic application of the Fourteenth Amendment would ignore the long history of pervasive racial discrimination in our society that the Fourteenth Amendment was adopted to remedy and the complexities of achieving the societal goal of overcoming the past effects of that discrimination.36
As in so many other contexts, the word “simplistic” was not part of an argument but a substitute for an argument. To interpret the Fourteenth Amendment as meaning what it says—equal treatment for all—does not ignore the history which led to the passage of that Amendment. Faced with blatant discrimination against blacks, those who wrote the Fourteenth Amendment could have chosen any number of responses—compensatory treatment for blacks, equal treatment for blacks, equal treatment for all, etc. They made that choice when they wrote the Amendment, just as those who wrote the Civil Rights Act of 1964 made the same choice when they wrote that legislation. Nor is there any indication from public opinion polls or any other source of a “societal” goal of compensating for the past, however much that goal may be part of the vision of the anointed. In short, all this vague and lofty rhetoric reopens a decision that was already made and enacted into law—and never repealed or amended, except by judicial “interpretation.”
A similar reliance on the vision of the anointed, in lieu of the written constitution or statutes passed by elected officials, occurred in the very different case of Planned Parenthood v. Casey, an abortion case. Once again, “evolving standards that mark the progress of a maturing society” were cited—this time by Justices Sandra Day O’Connor, David Souter, and William Kennedy37—as a basis for the decision reached.
The larger significance of the issue of judicial activism versus judicial restraint goes far beyond a question of particular theories of legal interpretation or the merits or demerits of the particular social policies involved in particular cases. Indeed, it goes to the foundations of a free and self-governing society. When those with the vision of the anointed line up solidly behind judicial activism, as they do, it is not because of a chance coincidence that they all happen to prefer one legal theory to another. Judicial activism is a mechanism through which that vision can be imposed on a public which does not support it, without having to go through elected officials who would not dare to vote for many of the features of that vision, including an expansion of criminals’ rights, affirmative action quotas, and other controversial policies on which the public and the anointed are lined up on opposite sides.
Some of the statements in Supreme Court opinions themselves betray the extent to which judicial activism is responsive to the vision of the anointed, using that vision as a basis for rulings which lack a basis in the words of the Constitution or in any statute passed by legislators. For example, in overturning the death penalty in the case of a murderer who committed his crime at age 15, Justice John Paul Stevens cited “evolving standards of decency” which made the Eighth Amendment’s “cruel and unusual punishment” prohibition applicable.38 Although claiming that such an execution would be “abhorrent to the conscience of the community,”39 Justice Stevens’ specific references were to “views expressed by respected professional organizations,” to “other nations that share our Anglo-Saxon heritage,” and to “leading members of the Western European community”40—in short, to the anointed. Clearly, there would be no issue before the Supreme Court in the first place unless the general community in which this murder took place had not prescribed the death penalty, even for murderers 15 years of age. Similarly, in a later case, the Supreme Court referred to how its decision would be seen by “the thoughtful part of the Nation.”41
Judicial activism in effect allows the vision of the anointed to veto the legally imposed decisions of the community, even when those decisions do not conflict with the written Constitution. Moreover, this veto is exercised in the name of the Constitution and even in the name of the community, meaning by the latter those who presume to consider themselves the “conscience” of the community.
Courts whose decisions are based on the written law and the historical meanings of the Constitution are practicing judicial restraint, even if that leads them to much activity in issuing court orders or striking down legislation not consistent with the Constitution. Conversely, courts whose decisions allow other considerations to be decisive are practicing judicial activism, even if that leads them to passive acceptance of policies and legislation at variance with constitutional guarantees. In short, activity is not the hallmark of judicial activism. It is the nature and basis of that activity that matter.
A court which allows its own notions of “evolving standards” and “the conscience of the community,” to supersede the written law and the historical Constitution is practicing judicial activism—even if that means doing nothing when property rights are violated by sit-ins or by legislation which ignores the protections of the Fifth Amendment against government seizures of property without due process or just compensation. A judge who would enforce the written law in these cases would be following “judicial restraint,” even though he might be more active in issuing court orders or in declaring offending legislation unconstitutional. Historically, the judicial revolution that began with President Franklin D. Roosevelt’s appointees to the Supreme Court initially took the form of a broader permissiveness toward legislation of the sort that had been struck down as unconstitutional by prior courts. Even a classic judicial activist like Justice William O. Douglas could use the language of judicial restraint—“We do not sit as a super-legislature,”42 for example—in cases involving “economic and social programs,”43 “the business-labor field,”44 or “business and industrial conditions.”45
Although in principle judicial activism may be expressed in inactivity, many of the judicial decisions which have attracted public attention and controversy in recent decades have been cases where the courts were active in overturning legislation and prior court decisions. This has confused the issue, rather than defined it. The clear line of consistency in judicially activist decisions—whether in expansive permissiveness toward legislation overriding private property rights or the constitutional right to make mutually agreeable contracts, on the one hand, or in striking down state abortion laws or prescribing local police procedures when making arrests, on the other—is that judges do not bind themselves to enforcing rules made by others, even when the historical meanings of those rules are quite clear, but feel free to evade such rules by “interpretations” based on broader social philosophies or a sense of cosmic justice.
Thus, for example, the fact that the “cruel and unusual punishment” prohibition of the Eighth Amendment clearly did not include the death penalty, which was permitted and regulated by other constitutional Amendments passed at the same time, has not prevented judicial activists from striking down death penalties on grounds having no basis either in the historical Constitution or in subsequent legislation. Moreover, the Supreme Court has even proclaimed as a general principle its emancipation from such historical constraints. For example:
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.46
In short, the Supreme Court cut itself loose from historical moorings and historical meanings, relying instead on its own “reasoned judgment.”47 How such ad hoc judgment could be law, in the ultimate sense of rules known in advance to others, was left undisclosed.
Judicial restraint has traditionally involved not only a reluctance to go beyond the historical Constitution and the duly enacted statutes (where the latter do not violate the Constitution), but also a reluctance to overturn prior court decisions on which the public has relied in making its own decisions and plans. In short, it attempts to leave intact a framework of law known in advance by which citizens may guide their actions. However, a long period of judicial activism makes it difficult, if not impossible, for subsequent courts to adhere simultaneously to both principles of judicial restraint. To uphold the original meanings of the Constitution, or of statutory legislation, may require overturning precedents which violate those meanings.
As federal judges more inclined toward judicial restraint began to be appointed in the 1980s, after several decades in which activist judges had remade the legal landscape, the dilemma which these new judges confronted repeatedly was whether to uphold precedents set by activists or to uphold the historical meanings of the written law. For example, in dissenting from the view that current “reasoned judgment” was the criterion of constitutional interpretation in an abortion case, Justice William Rehnquist went back to the historical circumstances in which the Fourteenth Amendment was passed:
At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion.… On this record, it can hardly be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as “fundamental” under the Due Process Clause of the Fourteenth Amendment.48
This approach does not even address the cosmic question as to whether a woman has “a right to do what she will with her own body,” as it is often phrased. The question addressed was whether the Fourteenth Amendment’s protection of existing liberties from state interference encompassed abortions. Chief Justice Rehnquist’s conclusion was that “the Court was mistaken” in Roe v. Wade when it classified a woman’s decision to terminate her pregnancy as a “fundamental right” under the Fourteenth Amendment.49 Whether it was a fundamental right in some cosmic sense was not a question within the jurisdiction of a court set up to apply the Constitution and the statutes. As Justice Antonin Scalia put it: “It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.”50 The “freedom to abort her unborn child” is of course “a liberty of great importance to many women,” he said, but the “issue is whether it is a liberty protected by the Constitution of the United States.”51
Given this historical approach of judicial restraint, Chief Justice Rehnquist and the other dissenters called for the 1973 Roe precedent to be overruled in 1992:
Our constitutional watch does not cease merely because we have spoken on an issue; when it comes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question.52
Although judicial restraint did not prevail in this case, in some other cases previous adventurous interpretations of laws were scaled back. This overturning of precedents set off denunciations by media and academic intellectuals who had applauded the precedent-shattering judicial activism of the Warren Court era. A New York Times editorial was typical:
Recklessly reversing precedents: That is not the role assigned to the Supreme Court. The nine justices are indeed supreme and often have the last word. But they are also a court, bound by restraints against willfulness and unfairness. That marble temple wasn’t built so that the nine could meet to poll themselves on matters of public interest.53
No such complaint was made when the Warren Court overturned precedents that were more numerous and of longer duration. Yet the Times continued to berate the Rehnquist Court for “contempt for precedent”54 and its columnist Tom Wicker accused the new justices of “hypocrisy” and expressed his own contempt for the presidents who appointed them and “prattled about judicial restraint.”55 Even on the Supreme Court itself, Justice Thurgood Marshall complained of “a far-reaching assault on this Court’s precedents.”56 Nothing in all of this acknowledged that the new overrulings of precedents were necessitated by previous overrulings of precedents and disregard of the Constitution itself, all of which had been applauded by those now speaking of precedents as sacrosanct.
Despite such cries of alarm from the anointed, the Supreme Court remained divided on the issue of respecting precedents versus overturning precedents that did not accord with the language of statues or of the Constitution. Justices Antonin Scalia and Clarence Thomas have clearly shown that they are ready to reverse precedents that have no basis in the Constitution or in the text of statutes. In the 1994 case of Holder v. Hall, for example, Justice Thomas rejected the Supreme Court’s “disastrous misadventure in judicial policymaking” in its prior interpretations of the Voting Rights Act. Such judicial practices “should not continue,” he said. “Not for another Term, not until the next case, not for another day.”57 However, the much-praised “centrists” on the Court—Justices Sandra Day O’Connor, William Kennedy, and David Souter—often try to find a middle way and judicious compromises. Among these “centrists,” Sandra Day O’Connor has been perhaps the sharpest in seeing through the flimsy pretenses on which judicial policy-making has been based—and at the same time the most unwilling to overturn precedents. The lofty term “jurisprudence” has been invoked frequently by Justice O’Connor in a way which seems to boil down to saying: This may not be in the Constitution or the statutes, but judges have said it, so we’ve got to stick by it.
Precedents are not to be sniffed at. People and institutions can base major decisions on the law as it exists and constant disruptions could be costly or even disastrous. However, the net effect of Justice O’Connor’s approach is to get the worst of both worlds: The recklessly or cynically set precedents of the past become sacrosanct while denying the citizens the security of known law—for the precedents upheld are typically not clear-cut statements of law but only a promise of ongoing judicial tinkering, as in the case of Planned Parenthood v. Casey, where state restrictions on abortion were permitted, so long as these restrictions did not place an “undue burden” on the women concerned. Such a standard is not law; it is a charter of endless judicial second-guessing, with legal results to be known only after the fact. Law had indeed lost its soul and become jungle.