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OPENING ARGUMENT

Judicial Excess On The Left

Judicial vetoes of presidential and congressional national security policies have emerged as the most important issue of national policy before the courts.

How would soon-to-be-President Obama like it if the courts were to order the Navy -- his Navy -- to cripple its training in Southern California coastal waters in the use of sonar to detect enemy submarines, and thereby perhaps endanger the Pacific Fleet?

That's what four Democratic-appointed federal judges in California and two liberal Supreme Court justices voted to do in a recent case, to avoid any possibility of harming marine mammals, not one of which has suffered a documented injury in 40 years of sonar training off the California coast.

 

And that's the sort of thing that liberal groups want done by the judges that President-elect Obama will soon be appointing.

Fortunately, the Supreme Court overturned on November 12, in Winter v. Natural Resources Defense Council, the major restrictions on sonar training that the four lower-court judges had ordered. The majority held that with the nation embroiled in two wars, "the Navy's interest in effective, realistic training of its sailors" far outweighed the speculative harm that the training might do to the plaintiffs' interest in marine mammals.

"For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe," Chief Justice John Roberts wrote for himself and the four other more-conservative justices. "In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet."

 

Noting that "antisubmarine warfare is currently the Pacific Fleet's top war-fighting priority," Roberts explained in detail why the training exercises are essential for effective use by Navy strike groups of "mid-frequency active sonar." This difficult-to-master technology is the only effective means of detecting the more than 300 nearly silent diesel-electric submarines in the hands of potential enemies, including China, Iran, North Korea, and Russia.

This type of sonar bounces loud noises off submarine hulls. It can seriously harm beaked whales and some other marine mammals, although no such injury has been documented off Southern California. The Navy has made extensive efforts to mitigate any possible effects by looking out for marine mammals and reducing or shutting off active sonar transmissions when they come close. But the Navy said that two requirements imposed by the lower courts -- shutting down the sonar when a marine mammal is spotted within 2,200 yards and greatly reducing the volume in some conditions -- would be crippling.

Justice Stephen Breyer, joined by Justice John Paul Stevens, concurred separately, except on a technical point. Breyer's opinion demonstrated in detail that the Clinton-appointed District judge (Florence-Marie Cooper) and Carter-appointed Appeals Court judges (Betty Fletcher, Dorothy Nelson, and Stephen Reinhardt) had offered no good reason "why we should reject the Navy's assertions that it cannot effectively conduct its training exercises" under the lower courts' order.

It seems quite clear that had he been the commander-in-chief, Obama would have taken the same position in the sonar case that Bush took.

 

Justices Ruth Bader Ginsburg and David Souter were not troubled by such details. In their dissenting opinion they blew off in a single sentence the government's hundreds of pages of evidence that the lower courts' injunction could place at risk the lives of thousands of sailors and marines.

It may seem far-fetched to worry that enemy submarines might someday sink an aircraft carrier with 5,000 sailors and marines aboard. But no more far-fetched than it would have seemed on September 10, 2001, to worry that terrorists might murder in a single day more Americans than died in the bombing of Pearl Harbor.

As for the weight on the environmental side of the scales, Ginsburg and Souter ignored the absence of documented injuries and characterized a 293-page Navy "environmental assessment" as predicting that the sonar training would cause "170,000 behavioral disturbances" of marine mammals over two years, including "436 injuries to a beaked whale population numbering only 1,121." But the same document also forecasts that the "behavioral disturbances" would have only minor, non-injurious effects, mostly on common dolphins; that the 436 injuries to beaked whales, a non-endangered, non-threatened species, were also likely to be minor, such as temporary hearing loss; and that there would be no significant impact on the environment.

Ginsburg and Souter rested their argument for interfering with the sonar training on the fact that the Navy had not yet completed a full "environmental impact statement" to supplement its extensively documented environmental assessment. The dissenters saw this as a violation of paperwork requirements imposed by the National Environmental Policy Act.

The two gave no weight to the fact that the Council on Environmental Quality -- which they archly dismissed as "an office in the White House" -- had invoked a regulation providing for emergency exceptions to NEPA. They ignored a provision of the Marine Mammal Protection Act specifying that the Defense secretary can exempt from that law (as he had) any activities that he deems necessary for national defense, even if serious harm to marine mammals is certain. They also ignored President Bush's determination that the training was "essential to national security."

Roberts found it unnecessary to decide whether the Navy violated NEPA because even if it did, the proper judicial remedy would not have been to restrict the service's training. He invoked well-settled limits on judicial power to issue injunctions by balancing the plaintiffs' interest in observing marine mammals against the Navy's, and the public's, interest in adequate antisubmarine training. This "does not strike us as a close question," the chief justice concluded.

Before the election, the media were full of warnings about the scary things that conservative justices and judges appointed by Republican John McCain might do. Barack Obama and his advisers should now reflect on scary things that the judges demanded by his liberal base might do.

Indeed, judicial vetoes of presidential and congressional national security policies have emerged as the most important ongoing issue of national policy before the courts. Obama has applauded (as have I, with reservations) rulings against Bush's outrageous handling of the Guantanamo detainees. But will Obama want to risk seeing his own judicial appointees veto his own national security policies? It seems quite clear, in this regard, that had he been the commander-in-chief, Obama would have taken the same position in the sonar case that Bush took.

A few other examples of liberal justices and judges doing their thing.

• In 2003, Breyer, Ginsburg, Souter, and Stevens not only joined now-retired Justice Sandra Day O'Connor in upholding the University of Michigan Law School's racial preferences in admissions but also voted in dissent to uphold the undergraduate school's even more rigid, 150-point "selection index." That system penalized all white and Asian applicants because of their race by effectively subtracting a full point from their high school grade point averages. For example, a poor white applicant with a straight-A average was automatically classified as having worse grades than a rich black applicant with a B-plus average. And that was fine with the liberal justices.

• In June, the same four joined sometime-liberal Justice Anthony Kennedy's opinion barring the death penalty in the rape of an 8-year-old (or any other) child, in part on the ground that there is a "national consensus against capital punishment for the crime of child rape." This "consensus" was a sham, as the dissent demonstrated; as both Obama and McCain (not to mention public opinion polls) confirmed by immediately denouncing the decision; and as Congress had shown in 2006 by authorizing the death penalty for child rapists under military law.

• A federal Appeals Court in California, including the same Stephen Reinhardt who voted against the Navy in the sonar case, ruled in 2002 that it was unconstitutional for students to recite the Pledge of Allegiance in schools unless the phrase "under God" was deleted. The Supreme Court's more liberal members -- who knew that the Appellate decision was supported by their own (badly reasoned) precedents -- ducked the merits and dismissed the lawsuit on technical grounds in 2004.

• In 1994, over Republican opposition, the Senate confirmed President Clinton's elevation of H. Lee Sarokin to the U.S. Court of Appeals for the 3rd Circuit. Sarokin, a self-described "flaming liberal" District judge known for eloquent opinions, had previously been excoriated by the 3rd Circuit for "judicial usurpation of power" and for ignoring "fundamental concepts of due process." Among the now-retired Sarokin's greatest hits had been a 1991 ruling that the Morristown, N.J., public library could not remove a homeless man whose offensive conduct and foul odor were driving other patrons and librarians away.

The Supreme Court majority of which liberal groups dream might include a couple of Sarokins, a couple of Reinhardts, and maybe Ginsburg and Souter, if the last two can be forgiven their occasional bouts of moderation.

Of course, no justice seems ready to retire, and the conservatives are relatively young. But Obama will soon be naming federal District and Appeals Court judges -- who have the last word in 999 out of 1,000 cases -- at a rate of about 40 to 50 a year. It will be interesting to watch.

This article appears in the November 22, 2008 edition of National Journal Magazine.

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