Courts Out of Control

Nagel Diagnoses the Unrestrained Judiciary “If the root cause of judicial excess is the way lawyers think, what is to be done?” So asked CU law professor Robert Nagel in an important article four years ago, with insights even more timely as we anticipate the seating of Justice Sonia Sotomayor. “It is necessary,” Nagel answers, “to look for those lawyers who are confident enough and independent enough to challenge established patterns of thought and deeply ingrained instincts. And it is necessary to recognize that the nomination and confirmation processes may even then not be fully adequate to restrain the Court. Renewed attention needs to be directed at other political checks on the federal judiciary. [But] Congress so far has lacked the political will….”

From this important and seldom-voiced insight has grown Bob Nagel's new book, Unrestrained: Judicial Excess and the Mind of the American Lawyer. We at Backbone America regard his diagnosis as fundamentally important for any hope of meaningful judicial reform, not only at the federal level when (as they will eventually) conservatives regain power, but also in Colorado for the immediate present, when voters have a chance to dismiss four activist liberal justices from the state Supreme Court in 2010.

Here is the full text of Nagel's seminal article from the long-ago days of the confirmation drama surrounding Miers, Alito, and Roberts.


The Problem with the Court National Review, Nov. 21, 2005 By Robert F. Nagel Rothgerber Professor of Constitutional Law University of Colorado School of Law

Observers across the political spectrum see the next nomination to the Supreme Court as pivotal. With the withdrawal of Harriet Miers as a potential successor to the meandering Sandra Day O’Connor, President Bush has the opportunity to force a clear-cut decision on whether the Court should make a basic change of direction. As the upcoming confirmation battle takes shape, it is important to understand fully the distressing lessons of the past thirty-five years. By 1972 President Nixon had placed Justices Burger, Blackmun, and Rehnquist on the high court. He did so after making the judicial activism of the Warren Court a major campaign issue. Since then, Republican presidents have successfully nominated seven individuals, all for the announced purpose of reducing the amount of legislating from the bench. Even President Clinton’s two appointments, Stephen Bryer and Ruth Bader Ginsburg, were presented as moderates who would refrain from extreme forms of judicial adventurism. In short, for roughly thirty-five years Republican appointees have had numerical domination of the Supreme Court and, more importantly, during that period the American people have witnessed a continuous record of assurances from presidents and judicial nominees that the Court should apply, not make, law. While it is widely recognized that these assurances have not exactly been translated into action, it is difficult to grasp the full scope of the failure. The problem begins with the fact that neither the Burger Court nor the Rehnquist Court reversed even one of the Warren Court’s egregiously activist decisions establishing new individual rights. In fact, not long ago Chief Justice Rehnquist himself wrote a decision emphatically re-affirming the notorious rule of Miranda v. Arizona requiring that police inform criminal suspects about their right to remain silent before questioning them. The conservative instinct to respect precedent might be thought to explain this sustained refusal to reverse course, but it cannot explain why so many Warren Court rulings have been recklessly expanded. It cannot explain, for example, the rather complete transformation by the Burger Court of a principle against legally-enforced segregation into a demand that school districts achieve racial balance through extensive busing programs. Nor can it explain the Rehnquist Court’s expansion of earlier, limited rulings on separation of church and state into an aggressive campaign to stop government endorsement of religion, including non-denominational prayers at school graduations, student-led prayers at football games, and public displays of the Ten Commandments. Even this is only the tip of the iceberg. Since 1970 the Court has established new rights undreamed of during the Warren Court era. Everyone knows of a few outrageous examples, such as Roe v. Wade, the abortion decision. But the record does not end there. The original abortion decision, which was itself roundly condemned by legal scholars as having no legal justification, has been stubbornly extended to grant the right to minors and to protect even partial birth abortions. Indeed, in voting to re-affirm Roe, three Republican appointees, O’Connor, Kennedy, and Souter, made the most extreme claims for judicial power ever articulated in American history. Moreover, the record of activism is not confined to a limited set of highly visible issues. It extends to every corner of public life. It includes an extensive campaign to transform gender roles, as well as significant efforts to re-write defamation laws in all fifty states, to protect pornography and nude dancing and offensive language, to require free public education of the children of illegal aliens, and to normalize homosexuality. In a mostly forgotten foray, the Court even adopted Charles Reich’s theories about “the greening of American” to announce that public assistance is a property right and that sixth grade school children must be given a hearing before being suspended. The result has been far-reaching and destructive changes to public administration and educational discipline. It is, then, an understatement to say that thirty-five years of appointing justices for the announced purpose of reining in the Court has not worked. The most common explanation for this sorry state of affairs is, of course, the Souter Explanation, which notes that, when he was nominated, David Souter had almost no public record on any important issue and that he has turned out to be one of the most liberals members of the Court. Under this view, which had much to do with opposition to the Miers nomination, it is assumed that predictions about judicial behavior can become more accurate if there is enough information. There is, of course, some truth in the Souter Explanation, but it does not fully explain our inability to restrain the Court. One reason is that even people who did have extensive public records before their nomination—people like ex-Governor Earl Warren and ex-politician and judge Sandra Day O’Connor—sometimes turn out much differently than their records would predict. This leads to the Kennedy Explanation, which posits that nominees’ beliefs change radically once they are on the Court. Much of the pressure to change is thought to be social. The justices, it is said, live the Washington D.C. in close proximity to people who think the purpose of life is to exercise political power over others. They begin to read the Washington Post and they socialize with liberal law professors from places like Harvard. Or, as in the case of Justice Kennedy (who is especially fond of relying on foreign legal sources when interpreting the American Constitution), they attend international judicial conferences where the prevailing belief is that judges are the ultimate guardians of civilized values everywhere. Again, this explanation is surely partly true. But most justices were powerful appellate lawyers or ambitious executive branch officials before ascending to the Court. You would think, then, that many of the factors that are supposed to influence them after confirmation would have already influenced them before that and should have been detectable during the nomination and confirmation processes. A third, and fuller, explanation is so obvious that it is generally ignored. Those put on the Supreme Court are almost always successful lawyers. This means that they tend to be adept at—and therefore not inclined to be skeptical of—the way lawyers and judges think. And the way that lawyers and judges think is one of the basic reasons that we have such a powerful judiciary. Consider first the basic legal instinct to respect and follow the logic of prior cases. The consequences of this instinct are almost always underestimated. In fact, firmly entrenched lines of cases now establish the basically liberal direction of the Court, not in only in a few high profile cases, but across the board. It is now settled precedent that government cannot endorse religion, that a right to privacy is part of the Constitution (and that this right applies to an open-ended array of issues involving sexuality and family life), that pornography is protected by freedom of speech, and that equal protection requires the invalidation of any legislative distinction thought by judges to be irrational. Even reversal of one or two landmark cases, like Roe v. Wade, would not significantly alter the fundamentally interventionist jurisprudence of the Court. More generally, many lines of cases hold that courts must decide whether an interest asserted by the government to justify a statute is illegitimate or, if legitimate, how important it is. These same legal doctrines also require that judges decide whether the legislature has chosen the best or most effective way of achieving that interest. This is to say that it is now normal and required practice for judges to make essentially the same kinds of assessments about the wisdom and efficacy of legislation as legislators do. It is easy to say at a confirmation hearing that judges should not legislate from the bench, but dozens of authoritative cases require that they do. Indeed, the line between a legal and a political judgment is now obscured to the vanishing point. Respect for precedent is only one aspect of a broader inclination in the legal profession to honor authority generally and the judiciary especially. This inclination has natural appeal, especially for conservatives, but it has been taken so far in the nation’s law schools that the Supreme Court is commonly depicted as an indispensable political and moral leader. Its role in cases like Brown v. Board of Education was nothing less than to save the country from

profound moral paralysis; its role in cases involving Nixon’s Watergate tapes or the 2000 Florida election dispute, was to save the political system from chaos and fecklessness. It was this same grand view of the centrality of judicial power that caused those three conservative justices in Planned Parenthood v. Casey to write that opposition to the Court’s original abortion decision threatens the American constitutional system. At its best and highest levels, the practice of law involves the imposition of order on complex factual disputes and the marshalling of rational arguments. It is a profession that honors detachment, discipline, intellect, and, above all, words. As valuable as these traits can be, those who are trained to rely on them in their daily work can easily become distrustful or even disdainful of the political process because that process involves unruly conflict, raw power, and emotionality. In politics the strongest arguments do not always prevail, and words are sometimes less important than experience; failure, disorder, and even disaster are always possibilities. Judges, who occupy an even more controlled environment than do practicing lawyers, will often view the outcomes of the political process as irrational, unjustifiable, or excessively risky. Finally, it now accepted by the bulk of the legal profession, including many of its most influential scholars and successful practitioners, that there is no single correct method for interpreting the Constitution. As (now) Chief Justice John Roberts said at his confirmation hearings, the correct sources of constitutional meaning vary depending on the nature of the case. Sometimes a justice should look at the plain meaning of the text, but sometimes that can be overridden by historical information or by the overall logic of the document or by changes in social conditions or by evolving political practices or by philosophical considerations. This is what most sophisticated lawyers believe, and it is the way they shape their arguments. This variety of interpretive methods may sound reasonable, but in operation it means that judges are free to move from one method or combination of methods to another. This in turn means that the justices are free in a very real sense to give whatever meaning they wish to the Constitution. If the literal meaning of the text seems unfortunate in a particular case, it is permissible to shift to some other source of meaning until the result seems acceptable. A justice committed to widely accepted understandings about what it is to engage in interpretation, then, is committed to a method that permits the justice’s preferences to displace constitutional meaning. This is not left-wing excess; it is mainstream legal thinking. If the root cause of judicial excess is the way lawyers think, what is to be done? Certainly, it is necessary to continue to study the records of judicial nominees carefully. But accurate predictions about specific positions that a nominee will take once on the Court, even if they are possible, will not change the basic direction of the Court. To do this it is necessary to look for those lawyers who are confident enough and independent enough to challenge established patterns of thought and deeply ingrained instincts. Both Justices Thomas and Scalia demonstrate these capacities, so such lawyers exist. But to find them it is necessary to look beyond credentials and ideology. And it is necessary to recognize that the nomination and confirmation processes may even then not be fully adequate to restrain the Court. In this event, renewed attention needs to be directed at other political checks on the federal judiciary. Congress so far has lacked the political will to enact jurisdiction-stripping legislation or to reverse egregious judicial errors through constitutional amendment. This failure means that for some thirty-five years, at any rate, we Americans have been more interested in the melodrama of confirmation hearings than in real change.