In the last half-century, conservative politicians have mounted three dramatically different attacks on the federal judiciary. The first attack, in which they emphasized the need for judicial restraint, was principled and coherent. The second, which called on judges to consider the original meaning of the Constitution, was more radical but still had honorable goals: to promote stability, neutrality and the rule of law. The third attack, however, is the most worrisome: a large-scale challenge to judicial independence, and we are in the midst of it.
During the first of the three waves, beginning around 1955, conservatives attacked liberal activist judges for seizing on ambiguous constitutional provisions to strike down decisions of elected officials. The conservatives were concerned about Supreme Court rulings protecting accused criminals, above all Miranda vs. Arizona, which required police to inform suspects of their rights. The principals were Justices William O. Douglas, William J. Brennan Jr. and Earl Warren -- the liberal leaders of the Warren court. The attack on the Warren court helped fuel Gerald Ford's failed effort to impeach Douglas in 1970.
In this period, conservatives promoted judicial "restraint," calling on judges to hesitate before interpreting the Constitution to strike down reasonable judgments of the people's representatives. President Nixon, for instance, sought to end the era of judicial "activism" by appointing judges who scaled back protection of criminal defendants and who rejected efforts to use the Constitution to protect the poor.
The second attack on the judiciary, which began in the early 1980s, no longer emphasized restraint. Instead it built on the approach to constitutional interpretation known as "originalism" -- the view that the Constitution means exactly what it meant when it was ratified. Some of these conservatives called for restoration of what they called "the lost Constitution."
Of course, defenders of the lost Constitution oppose new protections of criminal defendants. They have no sympathy for the right of privacy enunciated in Griswold vs. Connecticut and Roe vs. Wade. But many originalists are far more ambitious; they also believe, for instance, that Congress should not have more power over interstate commerce than it had in 1787. Unlike those who called for judicial restraint in the 1970s, these originalists are perfectly willing to use the Constitution to strike down decisions of elected officials -- if those decisions are inconsistent with the original meaning of the ratifiers.
On important occasions, this argument has found a receptive audience within the Rehnquist court, whose members have referred to the original understanding of the ratifiers in striking down the Violence Against Women Act and a key provision of the Age Discrimination in Employment Act, among many other laws.
Originalism is a radical program, but it has one admirable feature: It is designed to promote judicial independence from the political process and the rule of law, by ensuring what Supreme Court Justice Antonin Scalia, the most prominent originalist, calls a "rock-solid, unchanging Constitution." Scalia has deplored the fact that the "American people have been converted to belief in The Living Constitution, a 'morphing' document that means, from age to age, what it ought to mean."
But now we are witnessing a third wave of attack, in which originalism is receding, and in which many conservative politicians want judges to read the Constitution, and the law in general, as if it fits with the Republican Party platform. After all, Republican presidents have succeeded in reconstructing the federal judiciary so that it is dominated by handpicked GOP appointees. Liberal activism is dying if not dead. Why shouldn't Republicans take advantage of their dominance of the judiciary to ensure that their preferred policies are implemented by courts?
The problem, as the legal battle over Terri Schiavo demonstrated, is that whatever their politics, judges are unlikely to ignore the law. In that case, the law clearly did not authorize federal judges to order Schiavo's feeding tube reinserted -- but some Republicans are outraged that the judges did not have it reinserted anyway. On Wednesday, House Majority Leader Tom DeLay instructed the Judiciary Committee to investigate federal court decisions in the Schiavo case.
The attack on the judges who refused to order the feeding tube reinserted might be trivial by itself. But it is of a piece with something much more important. In recent years, some conservative politicians have been insisting that federal judges should strike down affirmative action programs, protect commercial advertising, invalidate environmental regulations, allow the president to do whatever he likes in the war on terrorism, use the Constitution to produce tort reform, invalidate gun control regulation, invalidate campaign finance laws and much more -- regardless of whether they can find solid justification for these steps in our founding document.
Now, the battle over the confirmation process has become enmeshed with this third and most extreme stage of conservative thinking. What we are seeing, for the first time, is a fundamental challenge to the rule of law itself.
Cass Sunstein teaches law at the University of Chicago.
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