The Supreme Court has five liberal judicial activists.
It also has five conservative judicial activists.
By "judicial activism," I mean a willingness to aggrandize judicial power by striking down democratically adopted laws and policies, based on subjective value judgments with no clear basis in the Constitution's text or history.
(Do I miscount? No. Justice Anthony Kennedy is liberal sometimes, conservative sometimes, and activist almost all of the time.)
The activist bent of all nine justices is illustrated by the aftermath of two of this year's biggest decisions.
In the first, on June 25, a 5-4 liberal majority (including Kennedy) stretched constitutional interpretation past the breaking point to bar Louisiana and other states from punishing by death even the most vicious rapes of children. The Louisiana rape victim was an 8-year-old girl.
In the second decision, issued the next day, a 5-4 conservative majority (also including Kennedy) struck down the District of Columbia's strict gun control law by holding for the first time that the hopelessly ambiguous, 217-year-old Second Amendment protects a broad individual right to "keep and bear arms."
The child-rape case is now back before the Court in the form of a rare petition for rehearing by the Louisiana district attorney who was on the losing end of the June 25 decision. Based on a glaring error in the majority opinion, the petition will be on the table at the justices' private conference on September 29.
It was prepared by a legal team led by Neal Katyal, a moderate Democrat and Georgetown law professor best known for winning the 2006 decision that invalidated President Bush's 2001 order creating "military commissions" to try Guantanamo prisoners for war crimes. While noting that he is "personally opposed to the death penalty," Katyal explains that in this case nothing in "the Constitution's text, history, and precedent" justified overriding "the principle of democratic governance."
By the time that Katyal filed Louisiana's briefs seeking rehearing, on July 21 and September 24, it was about as hard to expose the lack of any remotely plausible constitutional foundation for the Court's decision as it would be to strip the last pasty off an exotic dancer.
Justice Kennedy had held in his majority opinion that to execute even the most vicious rapist of a child would violate the Eighth Amendment ban on "cruel and unusual punishment." He based this in part on the majority's "independent judgment" that this would not be "proportional punishment" and was bad policy. But the Court has never rested such a decision solely on its own naked value judgments and policy preferences -- not, at least, overtly.
Accordingly, the bulk of Kennedy's opinion detailed the majority's finding that the laws adopted by the federal government and by 44 states -- including 30 of the 36 death-penalty states -- did not allow the death penalty for raping a child. These numbers were more than enough for Kennedy to discern a "national consensus against capital punishment for the crime of child rape" that was "entitled to great weight."
But the liberals' pretensions to be enforcing anything but their own personal values and policy preferences were ripped away within hours after they issued their decision.
First, Justice Samuel Alito's dissent for the four conservatives shredded Kennedy's claim of a "national consensus" by demonstrating that the recent trend has been toward more -- not less -- public support for executing child rapists. As of 1995, not one state law made such crimes punishable by death, in part because many legislators assumed that a broadly worded 1977 decision barring execution of rapists of adults would be extended to protect rapists of children. But beginning in 1995, six states had nonetheless made the worst rapes of children punishable by death, three of them since 2006.
More dramatically, both Barack Obama and John McCain rushed to denounce the decision the day it came down. McCain found it "profoundly disturbing" that any judge failed to see child rape as the "most heinous of crimes." Obama said, "I think that the rape of a small child, 6 or 8 years old, is a heinous crime" that is constitutionally punishable by death "under narrow, limited, well-defined circumstances."
This consensus between the Democratic and Republican (then-presumptive) nominees pretty well blew away, all by itself, the supposed "national consensus" on which the majority had rested its decision.
Then, three days later, came a stunning revelation in a blog post by a military lawyer: All nine justices, and all of their law clerks, and all of the lawyers in the case, and even the Justice Department had overlooked the fact that Congress had voted in 2006, and the president had agreed in 2007, that under military law, some rapes of children should be punishable by death.
Although this was but one provision in a 334-page Defense Department authorization bill, it would never have gotten through Congress -- the last group of people on earth to buck a national consensus about anything -- if executing child rapists really was broadly unpopular.
Still more proof of the majority's fecklessness came in July from a Quinnipiac poll finding that the public favors capital punishment for child rape by a lopsided 55 percent to 38 percent. And Harvard Law School's Laurence Tribe, for decades a leading liberal constitutional scholar and critic of the death penalty, wrote a Wall Street Journal op-ed calling the decision "seriously misinformed as well as morally misguided."
It was the revelation of the previously overlooked congressional provision that spurred Louisiana to petition for rehearing. The justices almost never grant such petitions. But they almost never overlook highly relevant acts of Congress, either.
Stressing that Congress's passage of this death-penalty provision was "deliberate and premeditated," Katyal argued that "such a clear expression of the democratic will, at the very least, calls into question the conclusion that there is a 'national consensus against' the practice." He added that the Quinnipiac poll suggested that "if anything, the national consensus favors" the death penalty for child rape. The Justice Department pounded this point home in a friend-of-the-court brief, asserting an "emerging 'national consensus' supporting -- not opposing -- capital punishment in cases of child rape."
The Justice Department's claim is debatable. But the five justices' finding of a national consensus against executing child rapists is indefensible. The five had a fig leaf when they issued their decision: Nobody had told them about what Congress had done. Now the fig leaf is gone. Will the emperors march onward with no clothes? Or will they cut their losses and reverse themselves?
While Katyal and others have been exposing the fallacies underlying the child-rape decision, one J. Harvie Wilkinson has been exposing cracks in the foundation of the gun control decision.
In a powerfully reasoned forthcoming law review article posted on the website of the Social Science Research Network, Wilkinson even likens the gun decision to Roe v. Wade, which for 35 years has been the favorite target of conservative rage at liberal judicial activism. "Each," he writes, "represents an act of judicial aggrandizement: a transfer of power to judges from the political branches of government -- and thus, ultimately, from the people themselves."
Wilkinson is a conservative, Reagan-appointed federal Appeals Court judge. But like Katyal -- and unlike Justice Antonin Scalia, the author of the gun control decision -- Wilkinson believes that neither conservative nor liberal judges should be running the country based on subjective interpretations of hopelessly ambiguous constitutional provisions.
Scalia rested the gun control decision on the cryptic 27 words of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." But as Wilkinson points out, the four liberal dissenters battled Scalia's lengthy majority opinion to a draw as to whether the relevant history showed an "original intent" to guarantee a right to have a gun other than in the context of militia service. "For every persuasive thrust by one side," Wilkinson writes, "the other has an equally convincing parry."
The judge adds, "When a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to the democratic process." Instead, the Court's conservatives are vying with the liberals in a "game of dueling activist Constitutions." They have abandoned the traditional conservative principles of federalism and "restraint and deference" to the democratic branches.
Where next? Wilkinson strikes a melancholy tone: "The time may have passed when judicial process matters. It may all be bottom line: gun-rights enthusiasts rush to hail [the gun decision] as pro-choice advocates hailed Roe. Who can blame them? But ... the largest threat to liberty still lies in handing our democratic destiny to the courts."
This article appears in the September 27, 2008 edition of National Journal Magazine.
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