“Supreme Irony”—Gingrich Right About The Courts

Peter Brimelow writes: I’m going to miss Newt Gingrich. (Assuming, of course, that he can’t re-reincarnate himself). Whatever else you can say about the former Speaker of the House—and we’ve said a lot—he is original and even creative. Thus he has single-handedly raised the issue of legislating judges, the key force behind America’s ongoing cultural Marxist revolution—and an immense problem for patriotic immigration reform legislation (exactly as I predicted in Alien Nation).  

Gingrich wants legislators to counteract judicial imperialism. His idea has caused a lot of harrumphing, even from self-proclaimed conservatives (for example, see A conservative worries: Will Gingrich return America to the days of King George? , by Rodney K. Smith, Christian Science Monitor, February 1, 2012). But of course Gingrich is right.

The traditional remedy to judicial imperialism: appoint judges who actually believe in the law. This was the answer I supported in my October 1981 Harper’s Magazine article, Supreme Irony: The Court Of Last Resort, which we have exhumed from the print tomb and which makes its first public online appearance here tonight.

But that was thirty years, and five Republican Administrations, ago. It just hasn’t worked. Indeed, Republican Senators were wholly unable to mount an effective opposition to Obama Supreme Court selections Sonia Sotomayor and Elena Kagan, although both are plainly just liberal political commissars.

On VDARE.com, we have discussed other remedies: jurisdiction-stripping under Article III, Section 2 of the Constitution, and (my personal favorite!) impeachment.The problem remains as stated. For the solution, we may have to back to the drawing board—along with Newt.

SUPREME IRONY |The court of last resort

[Originally published in Harpers, October 1981]

Within weeks of Ronald Reagan’s inauguration, several lawsuits were filed challenging the legality of his retroactive hiring freeze on federal recruiting. A public-interest group called Energy Action announced a suit protesting decontrol of petroleum prices. Public Citizen, Ralph Nader’s public-interest lobby, sued Health and Human Services secretary Schweiker over policy toward generic (non-brand-name) drugs. And a number of legal challenges to the proposed freeze on federal regulations were being discussed. All of which was presaged by the Washington Star directly after the election:

“Noting the three recent appointments of well-known liberal activists to the U.S. Court of Appeals

—Abner Mikva, Patricia Wald and Ruth Bader Ginsburg—one public interest lawyer commented:

“The courts now loom as the most congenial branch of the federal government. We may have to return to litigation to take advantage of this asset.”

It is important to realize what is going on here. One faction in American politics—whether or not it represents “the public interest”—has lost an election. Its policies may be reversed. It proposes to prevent that by appealing to the courts. It trusts the courts not because of the law but because of the judges. They are members of the same faction.

In Britain, Her Majesty’s Loyal Opposition is to be found in the legislature. In Ronald Reagan’s America, opposition is centered on the bench. It will almost certainly be neither loyal to, nor even impressed by, his mandate. And behind this opposition lurks a more ominous possibility: that our political culture is losing sight of the ideal of an impartial law.

THAT THERE has been an extraordinary invasion of every area of American life by the federal judiciary in the past twenty-five years is now undeniable. At one time, it was fashionable for supporters of this judicial activism to argue that the Supreme Court under Chief Justice Charles Evans Hughes had been equally unrestrained in 1935-36 when it ruled vital New Deal legislation unconstitutional. But there is a distinction. The Hughes Court was reviewing, perhaps overenthusiastically, the actions of a reforming legislature. Now, however, Supreme Court justices and a host of inferior judges are themselves reforming society, in the most detailed and aggressive way, not merely without the sanction of elected lawmakers, but often in a direction diametrically opposed to that in which they or their constituents might have wished to go.

It is an open secret that most major social reforms of the last generation have been accomplished by the judiciary. In what amounts to a cloverleaf of Damascus Roads, the Supreme Court has declared unconstitutional such previously accepted practices as segregation, capital punishment, school prayer and has unilaterally effected one-man, one-vote state legislative apportionment, affirmative action, abortion on demand, and the abolition of residency laws for welfare eligibility.

Each of these ends had devoted advocates who were not inclined to question the means by which they were achieved. But presumably everyone would have preferred to see legislatures rewriting the necessary statutes, or amending the Constitution. As matters stand, it is only a matter of time before someone realizes that the judicial branch in general and the Supreme Court in particular are the modern equivalent of the Wizard of Oz. They have no power other than the awe inspired by the Constitution. But a fundamental organic law capable of such profound reinterpretation at the drop of a Supreme Court justice or two, and their replacement by political opponents, is no sort of law at all.

Perhaps the confusion that exists in the minds of lawyers on the point has helped postpone that awful day. In his autobiography, The Court YearsWilliam O. Douglas claimed that when he joined the Supreme Court in 1939, Chief Justice Hughes told him that constitutional decisions were 90 percent emotional: “the rational part of us supplies the reasons for supporting our predilections.” Douglas says he took this advice to heart. There is every reason to believe him. He once remarked that he was more interested in creating a precedent than finding one. Nobody did more to convince American lawyers that they should study not the Constitution but the Supreme Court.

Yet there at the end of his book is the poor old U.S. Constitution, reproduced as an appendix, like an Orthodox priest drafted to sprinkle holy water on Red Army tanks.

And there can be no dispute about the degree of judicial ambition displayed in the endlessly proliferating minor cases as well. In Texas last year, U.S. District Court Judge Gabrielle McDonald  ordered a public station to screen “Death of a Princess”—a controversial television film it had canceled after Saudi Arabian protests. In South Dakota, U.S. District Court Judge Donald Porter ruled that ranchers must stop using certain chemicals approved by the Environmental Protection Agency to combat a grasshopper plague.

In Washington, Judge Barrington Parker ordered the army to upgrade less than honorable discharges given to some 10,000 Vietnam-era veterans found to be abusing drugs, following compulsory urinalyses that Parker said were “statements” covered by Fifth Amendment protection against self-incrimination.

In Rhode Island, Judge Raymond J. Pettine forced school administrators to allow a homosexual student to take a male date to his senior prom. In Mississippi, Judge Orma Smith ordered the state to supply to high schools a textbook previously rejected because of its controversial stress on black history. The California supreme court recently held intelligence tests to be unconstitutional.

In all of these cases, elected legislators and appointed officials found themselves stymied by arbitrary fiat, any challenge to which must be mounted against the forces of inertia and cost that are invariably decisive in politics. None of the rulings bore any serious relationship to the intentions of the Constitution’s framers, traditionally the standard by which legal problems are judged. Yet they explicitly contradicted political solutions.

This situation is largely the fault of our tremulous legislators. A classic illustration was provided by Washington Monthly when in 1979 it sent purported pro-and anti-abortion letters to every senator, demanding to know his or her position. [Mail Fraud on Capitol Hill, by Mark Feldstein, October 1979] No ancient Greek ever fled in more terror from the Furies than the average political hack from these two ferocious lobbies, and the result was the expected mixture of silence and mealymouthed or contradictory replies. One, however, was particularly significant. Senator Donald W. Riegle (Dem.-Mich.) replied that he preferred “to leave the issue to the courts.”

And this has been the way in which a whole generation of legislators has finessed enraged constituents in an era of social upheaval.

A dim awareness of these developments lay behind last year’s adoption by the Republican Party, along with Ronald Reagan, of a plank urging that no judge be appointed who favored abortion. Some lawyers and commentators claimed this was an attempt to impose a political “litmus test” on the judiciary, although it is the inexorable consequence of a system where the personal opinions of judges become law. However, it is doubtful that even the Republicans realized the extent to which their ideological opponents had become entrenched during the Carter administration.

The significance of the Carter administration in this area was a result of the 1978 Omnibus Judgeship Act, which congressional Democrats had kept on ice for six years, waiting for a Democratic president. This established 117 new federal judgeships and thirty-five additional circuit judgeships, all lifetime appointments. Making allowances for normal attrition, this meant that during his term of office Carter was able to appoint nearly half the federal bench.

Judges have to be confirmed by the Senate. But Jimmy Carter undertook that this new wave would be selected “strictly on merit.” Since, in fact, his appointments constituted a court-packing scheme unparalleled in American history, it is tempting to think that this was a deliberate deception. Certainly it was incompatible with his simultaneous comment that “if I didn’t have to get Senate confirmation for all my judicial appointees, I could just tell you flatly that 12 percent would be Spanish-speaking and 40 percent would be women and so forth.” But Carter was sufficiently sincere to enrage the then chairman of the Senate Judiciary Committee, James Eastland (Dem.-Ala.), before he finally diluted his proposals and restored the central role of his party’s senators in choosing their state’s judges.

The story is quickly told. A mere 3 percent of Carter’s judicial nominees identified themselves, in a 1979 survey taken by the American Judicature Society, as “conservative,” although self-professed conservatives dominate similar polls in the country at large. The rest were either “very liberal,” “liberal,” or “moderate.” A high proportion were active in Democratic Party politics.

The difficulty for any conservative administration is not merely that so many of its ideological opponents are thus immovably clamped to the public trough, nor even that proliferation of judges will shorten dockets and leave them time for mischiefmaking elsewhere. The difficulty is the judicial philosophy espoused by the Carter appointees. They are the children of the 1960s, not just because of their birth dates—Myron Thompson, a black appointed to the bench in Alabama, is thirty-four, seven years out of law school; Archibald Cox was eliminated as too old at sixty-eight. Unwilling to accept any restraint on their desires, they are quick to invent rationales for their actions. The Constitution is a “living law,” “flexible” enough for an “evolving” society.

Sometimes even rationales were dispensed with. Henry Pregerson, asked by the committee what he would do if confronted with a conflict between his conscience and the clear letter of the law, unflinchingly replied that he would abide by the former. Nathaniel Jones denounced some recent Supreme Court decisions limiting school busing as the “culmination of a national anti-black strategy,” which included congressional approval of policies that “drip with racist anti-city and antibusing features.” Stewart Newblatt, when questioned by Senator Robert Dole, said that he was and would continue to be a “judicial activist.” Legislators encourage this focus on social goals rather than legal procedure. Democratic-appointed nominating commissions throughout the country routinely inquired into candidates’ views on ERA, school busing, and abortion.

Republican enators have sat back and let this transformation of the judicial branch happen. No one dissented from any of the nominations mentioned. Partly this is because opposing the candidate of another senator is a serious breach of Senate etiquette. In part, Republicans were intimidated by the tendency to see the question of a nominee’s “qualifications” as solely a matter of academic and professional credentials, particularly since few legislators have the Ivy League veneer of top liberaldom. And, of course, no one wanted to appear sexist or racist, especially since this was one of the few flaws for which the nominees themselves were being exhaustively examined. So strong was this last reflex, in fact, that it resulted in the confirmation of a black attorney, U. W. Clemon of Alabama, even though the American Bar Association ruled him technically “unqualified.”

The only nominee to be rejected, the first in forty-three years, was Charles Winberry of North Carolina, against whom there were criminal and ethical allegations. Ironically, Winberry’s judicial philosophy would probably have been relatively unobjectionable. His supporters felt strongly that he should not be penalized in the absence of criminal proof.

The Reagan administration and the Republicans now controlling the Senate campaigned on policies radically different from their liberal predecessors. Should they actually wish to implement them, public-interest groups, in cooperation with sympathetic judges, will be able to stage even more effective counterattacks, right down the line.

For example, President Reagan could revise equal-opportunity directives such as Executive Order 11246, which time and the bureaucracy have twisted into an excuse to impose racial and sexual quotas on the public service, only to have the courts announce that such orders merely implemented a statistical balance that was constitutionally required all the time. Welfare and public housing might turn out to be “rights” unassailable without an entitlement of “due process” unsuspected by the Reconstructionist Congress that invented the Fourteenth Amendment. Reduction of federal aid to education could be attacked on the grounds that it perpetuates discrimination by placing a premium on a community’s willingness and ability to support local education. Or it might be challenged for impeding a child’s “right” to be instructed in his mother tongue. Efforts to restructure the bureaucracy might run foul of the increasingly expressed view that federal employees enjoy certain property rights in their positions. The freedom of the executive to alter environmental or workplace safety regulations is equally vulnerable. Even foreign policy—the re-recognition of Taiwan, or the exercise of the war power—is a target for ambitious lawyers, on or off the bench. There are no limits to what can be done with such “evolving” concepts as “commerce among the several states,” “general welfare,” “due process,” and “equal protection.” *

Against this, Reagan may get the opportunity to appoint several Supreme Court justices. Five sitting judges are over seventy, and two others are in their mid-sixties; of these, Justice Stewart has already announced his retirement. But even if Reagan’s choices behave as he hopes—a dubious proposition, as Eisenhower discovered with Earl Warren—it will be too late. Years would elapse before the rulings of such a court would be made and would filter down to the lower courts. And even then there would be plenty of opportunity for other kinds of judicial obstruction.

REAGAN’S real defense will be to use the teaching power of the presidency to focus public debate on the issue of judicial supremacy. Few human conflicts are carried to a logical conclusion; this applies even to ones involving lawyers. The courts follow the election returns, particularly when they are as devastating as those of 1980. It is possible that a full-blown crisis such as occurred in 1935—36 can be avoided, if the judiciary is sufficiently impressed to curb its ambition. The caliber of the administration’s legal officers will also be vital in what will be a struggle for moral advantage.

A second part of any strategy to redress the balance between the branches of the government must be to foster cooperation between the legislature and the executive. Fortunately for Reagan, his party has a grip on the Senate that it will probably strengthen in 1982. The House remains in liberal hands, but cryptoconservatives in the Democratic ranks are crawling out of their holes to lend a hand.

One result of this may be successful legislation to limit venue-shopping by litigants in search of sympathetic judges, as well as the extension of venue in environmental and regulatory cases beyond the District of Columbia federal court. Additionally, Congress may take initiatives designed to curb specific examples of judicial legislation. For example, there will be serious consideration of constitutional amendments that could overturn Supreme Court decisions in the areas of school prayer, abortion, affirmative action, and school busing—the latter already forcing its way to the floor of a reluctant House in 1980. Congress also has the arcane power (under Article III, Section 2 of the Constitution) to withdraw subjects from the jurisdiction of the courts if sufficiently provoked.

An attempt to exercise this authority in the case of school prayer nearly succeeded in the House, following Senate approval, at the end of the 96th Congress, to general perturbation and the great interest of constitutional lawyers. Other proposed efforts would limit the tenure of federal court judges or expose their decisions to review by an even higher authority, like the “Court of the Union,” made up of the chief justices of the fifty states, or by a two-thirds vote of Congress in the case of decisions overturning state or federal legislation.

But the great problem conservatives face in considering their opt ions is that they themselves have been infected with the disease they are supposed to be fighting. The platform pledge to nominate anti-abort ion judges, however understandable, was one symptom. Another is the tendency of conservatives to believe that the solution is merely to appoint conservative judges.

This is a fatal error. Academic and professional distinction may not be essential for a federal judge—witness Earl Warren or Hugo Black. Intangible “moral” questions may be pointless, which was the argument used in Winberry’s defense and (successfully) during the 1970 attempt to impeach the colorful Justice Douglas.

It may even be natural and harmless that politicians should hand out judgeships—as well as every other plum they can get their hands on—to colleagues, cronies, school friends, and the husbands of mistresses. None of this would matter—if the judges enforced the law. Yet willingness to enforce the law impartially, whether it is one written by liberal lawmakers or conservatives, is precisely what is now being cast aside with a worldly, if opportunistic, shrug.

When the British established their empire and set up courts, it was common for magistrates to be approached by natives bearing gifts, hoping to encourage favorable rulings on the suits in which they were involved. This, after all, was how justice had always been done in their societies. The British had to explain that they came from a superior tradition: their law was not the whim of a despot but an objective thing, impartially administered and equal for all. The natives were naturally skeptical. But the British meant it, and in time able native lawyers became indispensable to every independence movement.

It is this Anglo-American tradition that is now in danger of being forgotten. A recent example was the Supreme Court’s ruling in United Steelworkers v. Weber, which upheld the use of racial quotas in employment despite their express prohibition in the 1964 civil rights legislation. In a dissent of unprecedented bitterness, Justice Rehnquist described the majority’s position as Orwellian in its reversal of the facts.

In other words, the natives were right. All the paraphernalia of carefully debated legislation and painstaking legal research is meaningless. The courts rule according to their personal values and interests. Earl Warren was doing this when he developed the habit of interrupting technical legal arguments to demand, “But is it right? Is it good?” in defiance of the first lessons of law school. Conservatives may legislate, and they may even appoint or intimidate enough judges to prevail for a while. But without the concept of an objective law to act as a keel, the ship of state will be inherently unstable. Liberal judges can send it rolling back again as soon as they regain courage. There is no source of legitimacy in a polity where laws are made and changed without the sanction of popular will, expressed through legislation.

Peter Brimelow is editor of VDARE.COM and author of the much-denounced Alien Nation: Common Sense About America`s Immigration Disaster (Random House – 1995) and The Worm in the Apple (HarperCollins – 2003)

* Recent developments include: a Texas court ordering the expansion of school bilingualism in the teeth of the new administration’s policy of dc-emphasis; the District of Columbia Appeals Court moving against the proposal that federal employees should pay for their parking; a Tennessee court refusing to allow a reduction of outpatient visits to meet federally imposed spending cuts. On the state level, a Florida court has struck down an attempt to make functional literacy tests a prerequisite for high-school grade changes and graduation; the Massachusetts supreme court has required Boston to keep its school system open although it has already exhausted its budget. There has been an attempt by four officials of the Federal Emergency Management Agency to retrieve their jobs, citing a 1980 Supreme Court decision; a suit filed by a group of congressmen (!) to preserve certain Vietnam-veteran hiring programs; a threat by the District of Columbia government to sue to prevent the reduction of its CETA grants.