Edith Jones, a fifth circuit judge and possible Supreme Court choice, argues that the “reigning legal philosophy” is responsible for the bitter politics that surround judicial nominations. Jones charged that legal elites (“mandarins of the law”) have long since come to view the courts as agents of social change. Federal judges, and later state judges, caught on to this heightened view of their power. Then, as judge-made law invaded politically sensitive areas, it provoked a political reaction. Jones thinks it will take decades to repair the damage and return to assessing Supreme Court nominees according to their brains and fairness rather than their propensity (or lack of it) for advancing their politics on the bench. According to Jones, writing in the University of Richmond Law Review, “The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening.” This will come about, Jones says, only “when the rule of law is again tethered to respect for the executive and legislative branches of government, to traditional legal craftsmanship, to continuity, to moral values, and to limited social aims.”
Exactly right. It’s almost impossible to read much commentary about the role of the courts without stumbling across arguments for more judge-made law, often couched in fancy rhetoric about “a living Constitution” or the alleged need to read the Constitution “in light of societal needs and evolving legal policy.” (U.S. liberals aren’t unique: In approving gay marriage, Canada’s Supreme Court said, “Our Constitution is a living tree, which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”) In part, relying on judges for political decisions is the result of a conscious strategy within the Democratic Party, as political analyst William Galston of the University of Maryland said last week.
Galston, a former aide to President Bill Clinton, says his party “convinced itself that, especially on social issues, the principal vehicle of advance would be the court.” It’s easier to find a judge or two to rule your way than to go through the drudgery of building a majority for normal democratic decision making, particularly if you are pushing a liberal agenda in a conservative age.
The dependence on judges has been accelerated by the rise of groups that have little interest in majoritarian politics. The gay movement, the primary example, spends almost all its energy hoping to win from judges what a large majority of Americans oppose. That strategy, particularly after the Massachusetts Supreme Judicial Court decision on gay marriage, bred a predictably ferocious public reaction. But it also may be encouraging more judges to assert themselves in support of the gay effort, regardless of what the law says. Judicial decisions now routinely come down heavily on the gay side of the national argument, while democratic decision making generally heads the other way. A byproduct of this “rely on the judges” strategy is increased disdain for ordinary politics. Electoral and legislative majorities are said to be arbitrary and meaningless; the collective wisdom of ordinary voters allegedly cannot compare to that of judges. Some years ago, law Profs. Robert Nagel and Jack Nagel wrote that “if all political majorities are just arbitrary, the outcomes of democratic political processes lose their legitimacy and everything becomes fair game for the (supposedly) wiser deliberations of judges. That seems to be a conclusion with broad appeal, at least among law professors.”
The rise of the lawmaking judge and the conversion of the Supreme Court into a sort of superlegislature make the political system less democratic.
Conservatives and liberals both win some and lose some, but on major issues of the culture war the courts have heavily favored the left and attempted to settle controversial issues that should have been left to politics—most obviously abortion and affirmative action. On church and state, the courts have generally imposed the views of the secular elites, converting the Founding Fathers’ ban on the federal establishment of a church into a broad program for eradicating religion from the public square. Even the recent baffling and apparently contradictory 5-to-4 decisions on the display of the Ten Commandments seem narrowly political. They bar new displays of the commandments, as in Kentucky, while allowing a token old one in Texas, probably so that the public won’t get too inflamed about the plain meaning of the Kentucky decision.
No “agents of social change,” please, on the Supreme Court. We need a modest and nonideological justice who is determined not to impose his or her politics from the bench.