Lies the government told you (7 page)
Yet, Judge Sotomayor’s decisions as a federal district court judge, and as a judge on the Second Circuit Court of Appeals, indicate that she is far from an activist. I do not agree with all of her decisions, but it is clear that she is highly intelligent, has a tremendous respect for the law and precedent, and exercises judicial authority well within the present-day parameters of American legal thinking. She will likely be an intellectual asset to the Supreme Court.
It is dangerous for judges actively to make policy, and there are structural constraints in place to prevent them from doing so. The judicial power of the United States is outlined in Article III of the United States Constitution, which states, “The judicial Power shall extend to . . .
Cases
. . . arising under this Constitution and the Laws of the United States . . . [and] to
Controversies
between two or more States. . . .” (emphases added). Section 2 goes on to define the types of cases that federal court judges can hear. This Section limits a federal judge’s power by requiring that a federal court must be presented with a case or controversy over which it has jurisdiction in order to act. Furthermore, when a case reaches an appellate court, the legal issue at hand becomes so specific and fine-tuned that there is very little room for a judge drastically to affect the law.
Nevertheless, judges at the Court of Appeals level, and justices of the Supreme Court, are not judicial umpires who merely “officiate” disputes between parties. They are not moderators whose sole purpose is to keep order while the parties resolve their disagreements. They are legal scholars often faced with serious decisions about uncertain areas of the law.
The Supreme Court’s behavior in defining the law does not make its members “judicial activists.” In fact, the Framers
wanted
the Supreme Court to perform this function. They envisioned the federal judiciary as a branch of government independent of the legislative and executive branches, and one that would preserve the Constitution.
In
The Federalist, No. 78
, Alexander Hamilton
*
wrote that given our “limited constitution” (one that identifies certain specified exceptions to legislative authority), the courts must be independent in order to check legislative action.
16
According to Hamilton:
Limitations [on legislative authority] can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
17
James Madison agreed with Hamilton, stating that the job of the judiciary is to act as an “impenetrable bulwark” to protect our constitutional liberties against the political branches of government.
18
There is no serious dispute that the Framers envisioned judges engaging in what I’d like to call “constitutional activism,” whereby judges interpret the Constitution, preserve its legitimacy, uphold the Natural Law, and restrain the power of all governments to take away our individual liberties.
The Birth of “Judicial Activism”:
Marbury v. Madison
Chief Justice John Marshall’s opinion in
Marbury v. Madison
19
mimicked the Framers’ views on the federal judiciary. On February 27th 1801, a week before the end of President John Adams’s term in office, Congress adopted an act permitting the president to appoint forty-two justices of the peace.
20
Adams and the Federalist Party had been turned out of office and lost the presidency to Thomas Jefferson and the anti-Federalists (sometimes called by the odd-to-contemporary-ears name, Democratic-Republican Party), but the Federalists’ terms in office had not yet expired. Adams submitted his nominations on March 2nd, and the Senate confirmed his nominees on March 3rd, the day before Jefferson took office.
21
John Marshall had begun serving as Chief Justice of the United States on February 4th 1801, but had been Secretary of State of the United States since June 6th 1800. He served as both Chief Justice and Secretary of State until Jefferson took over the presidency. As Secretary of State, he was charged with signing the new justices’ commissions. After signing them, Marshall called upon his brother, James Marshall, to deliver them.
22
Unfortunately, a few of the commissions, including William Marbury’s, were not delivered until after Jefferson’s inauguration. Jefferson, a Democratic-Republican and anti-Federalist, instructed James Madison, his Secretary of State, to withhold the commissions. Marbury filed suit in the Supreme Court of the United States seeking a
writ of mandamus
, which would have compelled Madison to deliver his commission. The commission was the formal document naming Marbury, who had validly been appointed by President Adams and validly confirmed by the Senate. In an era before personal identifications, photographs, and other means of identifying and recognizing someone, a judge, especially a newly appointed judge, needed to show his commission to court authorities before taking the bench.
Chief Justice Marshall, writing for the Court, broke the case down into
three issues: (1) whether Marbury has a right to the commission; (2) if he has a right to the commission, whether he has a legal remedy for the failure to deliver it; and (3) if he has a legal remedy, whether the Supreme Court of the United States can provide him with such a remedy. Since Adams nominated Marbury, and the Senate confirmed him, Marshall held that Marbury did have a legal right to the commission. Marshall went on to state that “where there is a legal right, there is also a legal remedy.”
It is necessary, in every case, for a court to determine whether a legal right has been violated before it can act. In the case of
Baker v. Carr
(1962), the plaintiffs, Tennessee citizens and urban dwellers, argued that the Tennessee Legislature violated the Fourteenth Amendment to the United States Constitution by not reapportioning (altering voting-district lines) to account for population changes in the state. By not acting, the plaintiffs argued that the Tennessee Legislature gave the less-populated rural areas more influence than the urban areas. The Supreme Court held that it could hear reapportionment cases, and found that the Tennessee Legislature violated the Fourteenth Amendment, and the means to remedy that violation was a federal lawsuit, filed with a federal district (trial level) judge.
Justice Felix Frankfurter, however, dissented in
Baker
, arguing that the Legislature had not violated a
federally
protected legal right. All Tennessee citizens maintained the right to vote, and their votes were counted. Frankfurter stated that the plaintiffs were simply “dissatisfied” with their current degree of representation, and argued that it is not the job of the federal courts to give them more political power. According to Frankfurter, “there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers, carefully and with deliberate forethought, refused so to enthrone the judiciary.” In
Baker
, Frankfurter reiterated his plurality opinion in
Colegrove v. Green
(1946), in which he stated that “Courts ought not to enter this political thicket.”
In
Marbury v. Madison
, unlike in
Baker
, Marbury did, in fact, have a legal right and a remedy. The problem for Marbury was that the United States Supreme Court could not provide the remedy Marbury deserved. Marbury filed his case
directly
in the Supreme Court because Section 13 of the Judiciary Act of 1789 stated that the Supreme Court had “original jurisdiction” over the matter. That is, the statute stated that the case could be filed
directly
with the Supreme Court; it did not need to make its way through lower federal courts or through a state court system first, as is usually the route, and as was the route in
Baker v. Carr
.
Article III, Section 2, of the Constitution, however, states that “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” This clause clearly did not cover Marbury’s predicament. The question for Chief Justice Marshall, then, was whether the constitutional provision at issue represented an exhaustive list, or whether Congress could expand the Supreme Court’s original jurisdiction through legislation. Marshall held that Article III does, in fact, create a ceiling on the Supreme Court’s original jurisdiction, and therefore declared Section 13 of the Judiciary Act of 1789 unconstitutional. Unfortunately for Marbury, he had filed his case in the wrong court because he had followed a law that was the very first in history to be declared unconstitutional.
This case is significant because it established the Supreme Court as the authoritative interpreter of the Constitution, and asserted the Supreme Court’s power of judicial review. The concept of judicial review permits the federal judiciary to review and to strike down as unconstitutional acts of the legislative and executive branches (and eventually of state governments as well). According to Marshall, “It is emphatically the province and duty of the judicial department to say what the law is.”
Chief Justice Marshall clearly engaged in a form of policymaking, or “activism.” Marshall held that Article III limits the Supreme Court’s original jurisdiction. More importantly, he advanced the policy that the Supreme Court, and neither of the other two branches, is the final authority on “what the law is.” Therefore, it had the power to strike down executive and legislative acts repugnant to the Constitution. The Constitution, however, is silent on the role of the judiciary, aside from the rules that judges will “hold their Offices during good Behavior,” receive compensation, and hear certain types of cases.
Who, then, was Chief Justice Marshall to create unilaterally a role for the federal judiciary not envisioned in the Constitution? Or was it envisioned? Don’t the members of the popular branches also take an oath to uphold the Constitution? What’s so special about judges? If the branches of government are
equal
, how can one branch
invalidate
the official behavior of the other two?
The answer to these questions, simply, is that it is dangerous to leave constitutional questions up to the branches of government that are actually making the laws, and the Framers understood that. If Congress and the President had the power to make laws
and
interpret the Constitution, there would essentially be no check on their power. The Constitution would be toothless, and the popular branches would work systematically to restrict our liberties. (We know this because Congress and the President still try to take away our freedoms.)
According to Harvard Professor Laurence Tribe, a renowned American attorney and constitutional law scholar, “The whole
point
of an independent judiciary is to be ‘antidemocratic,’ to preserve from transient majorities those human rights and other principles to which our legal and political system is committed”
23
(emphasis in original). Tribe went on to state that “[w]ithout this role there would be nothing to stop a bare majority of our citizens from deciding tomorrow that the minority should be enslaved or required to give up its belongings for the greater good of the greater number.”
24
Tribe reminds us that without an independent judiciary with the power of judicial review, persons in our republic would have no recourse against popular government policies that infringe upon their natural rights.
It is important to note, though, that Chief Justice Marshall did not argue that the judiciary was in any way superior to Congress. Rather, his opinion echoed Hamilton’s statement in
The Federalist, No. 78
, which he did write (but could not have sincerely intended): “The Constitution is superior to all; the judiciary is just acting to preserve its legitimacy.”
Judicial Passivity
There have been many Supreme Court opinions throughout history in which the Court should have acted in a more activist way, but failed to stand up to government abuse.
A great example of judicial inaction was the Supreme Court’s decision in
Plessy v. Ferguson
.
25
The conflict in
Plessy
resulted from government-mandated racism, not from private behavior. In 1890, the State of Louisiana enacted a law that
required
racial segregation in public accommodations, including on railroads. African-Americans despised this law because its goal was to maintain white supremacy. The railroad companies also vehemently opposed it because it forced them to add more railroad cars and more employees, and thus incur more costs, so as effectively to segregate blacks and whites.
On June 7th 1892, Homer Plessy, who was seven-eighths white, and only one-eighth African-American, boarded a railroad car that was designated for whites only, with the purpose of violating the law. After refusing to move to the “colored” car, Plessy was arrested and jailed for violating the Louisiana statute. Before the Supreme Court of the United States, Plessy argued that the Louisiana law violated his rights under the Fourteenth Amendment’s “privileges and immunities” and “equal protection” clauses. According to the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.”
Today, about a half-century since the Civil Rights Movement, the decision in this case seems like an easy one. Racial segregation commanded by the government, by definition, treated whites differently from blacks, and therefore deprived blacks of equal protection. Under today’s notion of equality, therefore, the Louisiana law would be struck down as blatantly
unconstitutional.
In 1896, however, the United States was not too far removed from the Civil War and the institution of slavery. The Thirteenth, Fourteenth, and Fifteenth Amendments were the so-called “Reconstruction” Amendments, geared toward promoting racial equality. However, these amendments, while abolishing slavery, did not explicitly abolish legally enforced segregation.
