Constitutional Opinions: 2 No Quick Fixes
Rabkin, Jeremy
by Jeremy Rabkin No Quick Fixes An indifferent public is no match for activist courts. Conservative commentators have been doing a fair bit of huffing against the Supreme Court in recent months,...
...And so on...
...Federal appeals courts on both coasts have decided to end the anguish by simply decreeing a new policy—a right to assisted suicide—in the name of the Constitution...
...If Congress is not prepared to mobilize public opinion on particular issues, however, it can't expect to muster public support for an overall attack on judicial authority in the name of an abstract theory...
...case, equating state support for an all- Is the public now so much angrier at male military academy with state-spon- the Court than it was in the 1930's...
...The Federalist famously urged the need for "republican remedies to the diseases most incident to republican government...
...ow many Americans would In Slouching Towards Gomorrah, Robert agree with the claim that the Bork says that is "exactly so...
...Given the force of this logic, Justice Scalia protested, even a private school would have to be denied tax-exempt status if it were not co-educational — unless the ularly stark interpretation of the general Court disregarded its own precedent here, pattern...
...Kennedy—to achieve a majority...
...After California voters endorsed a state constitutional amendment banning affirmative action preferences, a federal judge almost immediately held the measure unconstitutional...
...Reputable scholars, such as Georgetown Law professor William Eskridge, insist that the Supreme Court will be on solid ground in declaring the Defense of Marriage Act in violation of the Constitution...
...against federal overreaching at the Roosevelt announced the proposal after expense of the states...
...For example, a law limiting federal commitments to racial or ethnic preferences — a federal counterpart to the California Initiative—would do a lot to focus and reinforce the current public mood on this issue...
...No doubt, the genrize Congress to override constitutional eral public is woefully uninformed about rulings of the Supreme Court by a two- the actual decisions of the Court...
...When a Hawaii court held that the state might be obliged to recognize same-sex marriages, Congress responded by enacting a federal statute, authorizing all other states to refuse to accord inter-state recognition to such marriages...
...Why such reticence, when the new Canadian constitution explicitly allows politicians to override the court...
...Say what History must be discouraging for those you will about these two, they are not like- who seek to build public support for ambily to harbor ambitions of enacting the tious remedies...
...The injunction may be activist, but under existing precedents it can certainly be defended...
...The Canadian Court then duly adopted an activist stance, as if to make up for lost time: it has struck down Canada's anti-abortion laws, introduced American-style legalisms into the criminal justice system, struck down Sunday-closing laws as infringements on religious liberty, and soon...
...The compromise finally adopted allowed the federal parliament and any one of the ten provincial parliaments to override a constitutional ruling of the Supreme Court by simple majority vote...
...Yet before 1982, Canadians had almost no history of activist judicial intrusion into social issues—on the contrary, they had a tradition of disciplined parliamentary support for the government of the day...
...The Clinton Justice Department has announced its readiness to defend the judge's action all the way to the Supreme Court...
...A lot of political campaigning is required on specific issues to teach the justices what will be regarded as too "far left" or just too far out for the country to accept...
...Contemporary constitutional which, as Scalia immediately acknowladjudication, he says, has become little edged, "is a substantial hope, I am happy more than a system to "enact the policy and ashamed to say...
...The Supreme Court may well go along...
...Most people do not understand against the constitutional preferences of what the Court is up to...
...Polls thirds vote...
...Lino Graglia, a law professor at the University of Texas, has offered a particJEREMY RABKIN is a professor of government at Cornell University...
...But if the public the "far left...
...One of the enduring infirmities of republican government is inattentiveness on the part of the general electorate...
...Critics of judicial usurpation should be the last to suppose that this problem can be remedied by a constitutional quick-fix...
...I n fact, this scheme has already been tried and has proved a great disappointment as a check on judicial activism...
...And he pro- Supreme Court has been enact-poses a suitably radical remedy: a consti- ing the preferences of the "far left" of tutional amendment that would autho- the "cultural elite...
...It is not so much a particular braking device that's required, as specific demonIs the public now so much angrier at the Court than it was in the 1930's...
...Not one of its rulings has ever been overruled by the federal Parliament, and only Quebec and Manitoba have exercised their veto power—one time each...
...If the Court is ever to restrain itself, the political system must signal its willingness to resist judicial activism...
...And, like politicians everywhere, Canadian pols are not anxious to jump into controversial issues...
...The recognizes, though, it doesn't make these Court-packing plan nevertheless provoked justices reliable agents of the "far left...
...One reason is that, while it is perfectly legal, politicians fear that such overrides will appear as threats to civil liberties or the rule of law...
...strations of the need for brakes...
...Canada adopted a new federal constitution in 1982...
...A Republican Congress can be a big help in this effort to instruct the Court by rallying public opinion...
...So controversial decisions does not see the Court as extreme, how require the support of the Court's wob- likely is widespread support for extreme bling center—Justices O'Connor and remedies for judicial activism...
...Conservative commentators have been doing a fair bit of huffing against the Supreme Court in recent months, and new provocations are appearing almost daily on the front pages...
...Last year's Defense of Marriage Act might look less like a pre-election ploy—ripe for judicial overruling—if Congress now supplemented it with legislation clarifying what sorts of "marriage" would be recognized in federal tax law or in the award of Social Security benefits...
...Prime Minister Trudeau had been eager to have a judicially enforced bill of rights as a reassurance to French-speakers and other minorities...
...On the contrary, attempt to force changes on the Court they have sided with the conservatives in was surely President Roosevelt's "Court-a number of major rulings in recent years, packing" scheme, in which he proposed as for example in decisions against racial to add new seats in order to provide him-gerrymandering of electoral districts and self with openings for new appointments...
...Persored racism in the days of segregation...
...They pride them- the Court had struck down a series of popselves on striving for "balance...
...continually show that, while solid majoriBut both Bork's diagnosis and the rem- ties oppose abortion on demand, equaledy seem wide of the mark...
...The most ambitious agenda of the "far left...
...Meanwhile, almost everyone acknowledges that public policy faces anguishing challenges in dealing with pain-ridden, terminally ill patients who want medical assistance to end their lives...
...haps it should be, but there isn't much 62 March r996 • The American Spectator evidence that it is...
...If Canada doesn't make use of checks on its Court—and its Court seems unintimidated — why expect better results here...
...But many Canadian politicians— shocked at how much power courts had come to exercise in the United States — opposed the plan unless it included definite safeguards against judicial usurpation...
...If the public isn't already aroused, Bork's remedy isn't likely to do much good, even in the unlikely event that the public could be persuaded to support the sort of constitutional amendment he proposes...
...As even Scalia port for FDR in the 1936 election...
...such hostile public reactions that con-Last year the balancers signed on to Justice gressional leaders did not dare even to Ginsburg's feminist tirade in the VMI bring it to a vote...
...ular New Deal measures and after voters This can be maddening to a logical had reaffirmed their overwhelming sup-thinker like Justice Scalia...
...On the cur- ly solid numbers say they support rent Court, Rehnquist, Scalia, and Supreme Court rulings regarding aborThomas are pretty reliable hold-outs tion...
...The American Spectator • March 1997 63...
...preferences of the cultural elite of the far left of the American political spectrum...
Vol. 30 • March 1997 • No. 3
