Let's Talk Sense...

Sunday, December 10, 2000 Volume XXV, No. 42
Roswell, New Mexico

In this issue:

Face to Face with Judicial Activism
The Makeup of the U.S. Supreme Court
The So-called "Nine to Nothing" Decision



Face to Face with Judicial Activism

The Makeup of the U.S. Supreme Court

So far, we have seen absolutely nothing surprising, let alone "shocking" (another overblown usage spouted by the TV newsreaders and commentators) about any of the court decisions, at any level, in the Florida electoral controversies.

With regard to the US Supreme Court, we will remind you of the basic lineup (sort of like baseball cards) which we have published a number of times since the appointment of Justice Breyer, the last addition to the court six years ago.

***The Conservatives***

There are three "conservatives," two of which are strong and consistent in their view of the deference courts should show to legislatures and to the plain, written word of the Constitution, and of statutes. Those two would be Antonin Scalia, appointed by Reagan in 1986, and Clarence Thomas, a Bush appointee in 1991.

Chief Justice Rehnquist, appointed an associate justice by Nixon in 1972 and elevated to lead the court by Reagan in 1986, is generally a conservative, but has a considerable tendency to accept the supremacy of the courts and allow a good deal of encroachment by the courts on other branches' powers. One could say there are 2½ conservatives on the court and be perfectly understood.

***The Liberals***

On the other hand, there are four liberals on the court: John Paul Stevens, appointed by Gerald Ford in 1975, David Souter, a 1990 Bush appointee, and the two Clinton justices, Ruth Bader Ginsburg and Stephen Breyer, named to the court in 1993 and 1994 respectively.

These four basically adhere to the LawrenceTribe view of a court as a very tiny legislative body, free to mold and shape the law according to its own view of what is "good" for society and what is "good" public policy. When people (many in the media for example) speak of a "living Constitution," they are essentially advocating this approach to jurisprudence. The plain words after all were mostly written some two centuries ago. We must presume, the thinking seems to go, that most of it surely must be "dead," the word normally assumed to be the opposite of "living."

For liberals, the idea of reading the law and applying what a legislature has said is either secondary, or in no wise considered as part of their approach to a judicial controversy. The same goes for the Constitution. This is not to say that they do not attempt to cite some sort of legal, i.e. statutory or Constitutional basis, for their decisions. Many times they do in order to appear to be basing opinions on law. In actual practice, however, a "good result" is first decided upon, then a liberal justice works backwards to "find reasoning" which "justifies" the public policy choice which the justice believes is a good idea and is attempting to impose.

***The Middle***

In the middle, and easily the most unpredictable justices on the court, we find Sandra Day O'Connor and Anthony M. Kennedy, both Reagan appointees, 1981 and 1988 respectively. Each is sometimes activist and sometimes restrained-----with little rhyme or reason. Because of that they can in no way be considered "conservative." On the other hand, because they sometimes show restraint, and sometimes defer to the legislative branch, they could never receive full credentials from the liberal club of jurists.


The court can be said to divide roughly as follows:

2½ conservatives
4 liberals
2½ who are wholly unpredictable

5-4 decisions in favor of judicial restraint (as the current case from the 4-3 decision by the Florida Supreme Court cries out for) are reached only when the liberal (activist) case is either outrageous or simply wholly unsupportable by ANY reading of the law. The Florida case meets both criteria.

There is however, hardly an entrenched majority which favors restraint. Exceptions frequently occur, especially when O'Connor, Kennedy and even Rehnquist happen to believe that an issue at law happens to present a good opportunity to mold beneficial public policy.

O'Connor and Kennedy for example, look on the widespread availability of legal abortion as good public policy and find some way to apply their votes in support of such a policy, regardless of the facts in the case, or of the legal cases argued by the litigants.

Rehnquist is enamored of the central powers of federal government, and can be said to be "statist" in his general philosophy. He often finds ways to reflect that general view in cases before the court.

He, as well as O'Connor and Kennedy, are very much charmed by the ego-gratifying concept of the courts (the entire judicial branch) as the supreme arbiter in all controversies throughout the country.

This latter view, sadly, is widely accepted in the general populace despite the fact that no such view is anywhere to be found either in the Constitution, the Federalist Papers, or any debates or records of the Constitutional Convention.

The So-called 9-0 Decision

I first heard of the December 4th Supreme Court decision, remanding the Florida Court's unanimous "legislation," by a cellular phone call while driving between Roswell and Vaughn. The caller informed me that the "court had ruled '9 to nothing' in favor of Bush."

I was incredulous, asking "Are you sure about that?" "Well, yeah, I think so," was the answer. Then I turned on Rush Limbaugh who gave it pretty much the same spin. The problem is it just isn't exactly accurate.

The decision handed down on December 4th was a per curiam opinion. It expressed the opinion "of the court." No author is listed, and, very importantly, NO VOTE was taken. The notion that it was a nine to nothing decision is inaccurate.

What it meant was that at best, all the justices acceded to the decision. Probably it is more accurate to say that they acquiesced in the decision. That would be defined as "accepting or complying tacitly or passively" in the decision, which, after all, was issued without anyone's name or signature attached thereto.

I made the point that at least four of the justices of the US Supreme Court are reasonably sure (or hopeful) that the Florida Supreme Court will indeed return their case----this time being careful to at least go through the motions of allegedly citing actual legal underpinnings. (This is something they had not bothered to do in the first ruling.) If they do something halfway reasonable, I conjectured, then at least four members of the US Supreme Court are prepared to go along with them. This has turned out to be accurate.

In summary, let's make this very plain so that anyone can understand it:

Justices Stevens, Souter, Ginsburg and Breyer are all from the same jurisprudential mindset that the Florida Court is from:

the law, the Constitution(s), the statutes (federal and state) are only passing, sometimes almost irrelevant, exhibits in the realm of "justice."

They believe----as do most judges and about 80% of lawyers----that the courts are there to "do justice." That is, it is the courts' job in the cases which come before them to come up with an order which directs a new or corrective public policy. They are all perfectly at home with the idea of being a very tiny, efficient little legislature.

The problem is of course that we already have a branch of government charged with those functions. It is a branch whose members are accountable to the voters, unlike the courts.

Sadly, at the very minimum, four US Supreme Court members think this way. On a given issue, as many as seven do so. We'll soon know how many come down on the side of legislating in this case before the court right now.