Senator Frist and Representative DeLay's Claims of Supreme Court Judicial Activism and Anti-Religion Bias: Why They Aren't Persuasive

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Apr. 21, 2005

House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist made headlines recently by charging that the Supreme Court and courts in general are both "activist" and opposed to religion. Now, DeLay is even implicitly threatening impeachment of judges who do not follow his predilections as he investigates "good behavior." Their leadership underlines the degree to which the Republican Party is now controlled by - and its identity defined by - the far right.

In recent years, the Supreme Court has been pilloried by the far right for being "activist" - while at the same time also being castigated by the far left for being "imperialistic." When these kinds of allegations are trotted out by both ends of the political spectrum, it is very good evidence that what the Court is doing is neither activist nor imperialistic.

In fact, this Court has navigated a jurisprudence that is quite moderate and is beholden to no one political or religious world view. That is as it should be.

The Far Right and Its Allegations of Judicial "Activism"

Because the Republican Party has been captured by the far right, its politics have been increasingly focusing on issues relating to sex and religion. And when those issues have landed in the courts, Republicans on the far right have ended up angrily attacking those courts and judges that do not reach results of which they approve - no matter how well-reasoned the judicial opinions at issue may be, and no matter what precedents exist.

Along these lines, the far right has tried to make opposition to abortion a litmus test for nomination to the federal courts. It has bellowed against the Supreme Court's holding, in Lawrence v. Texas, the states may not criminalize conduct that is within consenting adults' right of privacy, as interpreted to include a right to sexual autonomy. And it took strong exception to the Supreme Judicial Court of Massachusetts's Goodridge decision, holding that the state's marriage law violated its constitutional equality principles when it permitted heterosexual couples, alone, to marry.

The Schiavo Case: Trusting the Courts, Only to Turn on Them

DeLay catered to the far right when he led the charge to enact "Terri's Law," which enabled her parents to return to a federal court that had lacked jurisdiction to hear their case. (DeLay is as cynical as he is catering, however: An earlier version of the bill would have given the parents new rights, not just a forum. But DeLay and other Republicans compromised and agreed to remove those new rights from the bill in order to get it passed.)

Ironically but all too predictably, after entrusting the case to the federal courts, DeLay then turned on them. The courts had rightly found there was no existing constitutional ground raised by the Schindlers, Terri's parents, that would permit them to overturn the state court decision. In response, DeLay claimed this modest, lawful, and prudent call was "activist," and threatened that the courts would have to one day "answer for their behavior."

After some cooler head reminded him that he was directly threatening the political independence of the judiciary -- one of the pillars of the American constitutional system -- DeLay retracted these particular words, but hardly abandoned the message. Indeed, his new remarks were if anything, even more threatening: "We've got jurisdiction over the courts. We set up the courts, and we can unseat the courts." And just in case no one understood that he was threatening the courts, this Tuesday, DeLay pledged to investigate whether federal judges have complied with the Constitution's "good behavior" requirement in coming to the decisions they have reached.

This last threat, of course, is a joke of the highest order. Neither he nor any other member of Congress can unseat a sitting judge simply because he disagrees with the decisions reached. The cooler head recently mentioned needs to sit down with Mr. DeLay and engage in an elementary, maybe even remedial, course on the separation of powers.

In any event, the charge of "activism" couldn't have been farther from the mark. The federal courts - like every court from the beginning of the long litigation -- reached a conclusion based directly on the law: Florida law permits oral statements to be taken into account in these circumstances, so that Michael's testimony regarding his wife's intentions was both admissible and probative.

Far from being activist, then, the Schiavo decisions resolutely have followed the rule of law - even while all around urged the judges who issued them to follow, instead, their own religious and political beliefs.

Admirably, the judges did not see fit to bring their religious or political leanings into their decisions. That's because their job is to apply the law, not legislate it.

In the end, the Schindlers' problem was with Florida law, not with the courts. To demonize the courts now -- as DeLay is doing -- is nothing other than a shell game of political accountability.

DeLay is like a big brother who just broke mom's pitcher, who starts pointing to his hapless little brother -- just sitting there minding his own business -- and saying, "He did it. He did it."

Terri Schiavo lost her life, and her parents lost their case, because of the actions of the Florida legislature and because of Congress - which might have tried to change the outcome by granting the Schindlers, Terri, and others similarly situated new federal rights.

Trying to lay the blame on the doorstep of either state or federal courts -- which only applied the law as written -- is not only inaccurate, but morally wrong. The buck stops with the legislatures on this one, not the courts.

The Reason for the Filibuster Controversy: The Push for Evangelicals' Judges

Recently, in the Senate, there has been hot debate over the question whether the filibuster rules should be suspended during the judicial confirmation process. Again, this is evidence that the far right is the driving force behind the Party. Moderates would not object to the longstanding tradition of allowing the minority party to weigh in on nominees, and ensure they are moderate enough to garner bipartisan acceptance. What is truly sad about the current debate is that the Bush Administration has been so eager to place judges with a singular view of the world in judicial positions that the term "bipartisan" has dropped out of the process altogether.

Normally, because of the way the current filibuster rules operate, it takes 60 votes to approve a judicial candidate. The Republicans, who now have a bare majority in the Senate, want to change that rule so that only a bare majority of Senators have to approve a judicial candidate.

Religious conservatives have been eager to assist with this campaign. They know that their far right candidates are going to have tough sledding getting the votes of the moderate Democrats. Yet under current rules, those are the very votes they must obtain to be confirmed by the Senate. Amending those rules would be a radical step - thus, the step has been nicknamed the "nuclear option."

Majority Leader Sen. Frist has been eager and willing to help, once again, in the far right's efforts. On April 24, conservative evangelical Christians will hold "Justice Sunday: Stop the Filibuster Against People of Faith" -- an event sponsored by the ultra-conservative Family Research Council. Reports are that Frist will supply a videotaped speech supporting the so-called "nuclear option." He has also initiated a new political cry suggesting that a vote against a Bust Administration judicial candidate is a vote against religion.

Absurdly, Frist and his fellows charge that the Democrats are "anti-religion" -- despite the fact that the vast majority of them are in fact also people of faith. The issue plainly isn't really religion, per se; virtually everyone in this debate is religious. The issue, it appears, is the wish to control public policy from a narrow religious perch.

What upsets the "People of Faith" -- and the Republican party for now -- is not the lie that Democrats are anti-religion; they plainly are not. It is the truth that the courts have not followed the far right's own political and religious dictates. But if the far right is upset with this, that simply means it is upset with the Constitution. Indeed, its discomfiture goes well beyond specific constitutional issues to the very bedrock of American liberty and constitutionalism -- it is attacking the separation of powers and the rule of law.

The Establishment Clause's separation of church and state applies just as clearly to the judiciary as to the other branches: Secular judges apply secular law. It is for religious tribunals to apply religious law. If Terri Schiavo's husband were a Catholic, and the Church had chosen to excommunicate him because he would not save her life, then that would be the Church's right. For a secular judge, however, to apply his religious beliefs in Schiavo's case would have been deeply wrong, and unconstitutional.

The Republicans' claim that people of faith have been rejected because of their faith is simply factually false. The reasons for rejection have ranged from political world views, to an inclination to impose religious beliefs on secular law, to advocacy of the diminution of civil rights, and more. And all of these reasons have been made quite public.

Essentially, the far right ring of the Republican party that now controls the Bush White House is interested in appointing as many activist judges as it can to overturn Roe v. Wade, Lawrence v. Texas, and those decisions under the Religion Clauses -- the Establishment Clause and the Free Exercise Clause -- that have rightly precluded religious conservatives from dominating the schools, the courthouses, and public grounds. Inclusion is a right, but domination and coercion are Establishment Clause violations, and ones that often inhibit the Free Exercise rights of others.

As should be obvious by now, "activism" is a code word for results not desired by the speaker.

The Far Left and the Wrongheaded Charge of Judicial "Imperialism"

It's not only the right that's off the mark here, though. Beginning as early as 1995, or even earlier, the far left (largely led by the liberal legal academics) has taken loud, angry issue with the Court's re-establishment of modest limits embodying constitutional federalism -- limits written into the Constitution itself, that had been previously ignored for decades.

It was in 1995 that the Court decided Lopez v. United States. Lopez held that Congress exceeded its Commerce power when it enacted the Gun-Free School Zones Act. Why? In no small part because Congress was so arrogant that it never even bothered to consider which of its limited powers, plainly enumerated in the Constitution, could possibly be the basis power to enact such a law.

In 1997, the far left cried out in pain again -- in response to another decision that simply tracked the contours of the Constitution on the federalism issue. The decision was Boerne v. Flores. There, the Court held that the Religious Freedom Restoration Act -- the most expansive assertion of federal power over and against state laws in our nation's history -- exceeded congressional power. As I argued before the Court and in a prior column, that was exactly the right holding.

The Court's call to federalism, though long in coming, should have been welcomed by all when it came. It was an overdue reminder that the Constitution gives Congress explicitly enumerated powers, not plenary power.

The left's critique of the Court's decisions has, in essence, claimed that the Court has no business imposing any limits on Congress -- to do so, the left suggested, was not just wrong, but "imperial."

But to say this, is to ignore the Constitution. It is to claim that enumerated power actually means plenary power. And that is simply not the case.

If Congress had endless power, why in the world would the Framers have bothered to list its powers in the Constitution, one by one? History, too, shows that the transition from the loose association of the Articles of Confederation to the tighter federalism of the constitution did not negate the fact that the Constitution was a compact among the states, who were releasing some powers, but certainly not all.

The Left's Claim that the Sky Would Fall Turned Out to Be Utterly Inaccurate

The left claimed the Court's recognition of federalism was a kind of revolution, designed to undermine fundamental rights. The years that have passed have shown the absurdity of this claim. By now, it is absolutely clear that the Court has provided only the most minimal limits on Congress's enormous power.

The Court may have invalidated RFRA. But it upheld -- for example -- the Americans with Disabilities Act provisions that require state courthouses be made accessible to the disabled.

Meanwhile, the Court has said repeatedly that the Civil Rights Acts are secure. Finally, for every Act of Congress the Court has invalidated, there has been an impressive array of state laws that in fact provide the protection already; losing a redundant federal law is not much of a loss at all. The so-called civil rights "witch hunt" was far from it.

The Far Right and the Far Left Switch Positions: The Advent of Liberal Federalism

If one pays attention to the doctrine instead of the political spin, federalism is a policy-neutral principle that gives the minority political party fifty state portals to press for its political agendas. It's the very skeleton of the Constitution -- not some embellishment partisan politics engrafted.

Thus, it should be no surprise that once liberals became a political minority in Washington, they too discovered the virtues of federalism and state legislatures. They too have come to appreciate that federalism is an effective way to get their preferred social programs introduced as experiments in the various states. And so it is on the state level that they now push for the recognition of gay marriage, the provision of marijuana for medical purposes, and the right to assisted suicide for terminally ill patients.

Conversely, as soon as Republicans controlled the White House and both houses of Congress, and therefore held the concentrated federal power the federalism cases were intended to contain, they became considerably less dedicated to the principle of federalism. After all, they hardly need federalism to get their agendas into the political arena, now that they can go straight through the federal government themselves.

No wonder, then, the Bush Administration has used its position of power to try to force states to abandon their more liberal agendas. For example, the U.S. Department of Justice has taken aim at both Oregon's law on assisted suicide and California's law on medical marijuana. (The latter is at issue before the Supreme Court this Term.)

At Least Get the Label Right: A Goldwater and Reagan Republican Court

Even if politics must define the Supreme Court -- and the truth is, law defines it far more -- then today's name-calling by both the far left and the far right misses the mark. This Court is, in fact, a Goldwater and a Reagan Republican Court.

The Goldwater Republicans, embodied by Justice Sandra Day O'Connor, believed in individual rights, separation of church and state, and federalism. No wonder, then, that they believe that no single religious viewpoint should determine whether a woman could obtain an abortion.

Meanwhile, the Reagan Republicans were united under a single banner of smaller government (which translates into states' rights, or federalism).

These positions have been all but abandoned by the current Administration, but they were and are, above all, moderate ones. As I have argued above, federalism is not a partisan stance, but a constitutional basic. And the principle of separation of church and state, too, is no more partisan -- and no less part of our Constitution -- than, say, the fact that we have a bicameral legislature.

Of course, moderation is never appealing to extremists. Fortunately, though, it is a long American tradition. Americans consistently have valued pragmatism over formalism. So the political powers du jour can call the courts as many names as they choose -- and even rattle their legislative sabers, threatening to act against them -- but it would appear that the political independence of the courts remains healthy and sound nonetheless.

That's because an attack on the courts goes against the American temperament: We like the system we have, and are rightly loath to abandon judicial independence for political or religious mandate.

Americans, in general, are an independent-minded lot. But lately, labels affixed to various policies and laws by the two ends of the political spectrum have come to dominate American debate. That's unfortunate.

Consider judicial nominations. Plainly, the right solution is the moderate one -- and the commonsensical one as well. It is patently obvious that excellence and independence of judgment are the only qualities the Administration and the Senate should be seeking in our federal judges, who will serve for decades and face literally thousands of issues. But these qualities are antithetical to the one that is being sought by Frist and DeLay: the willingness to take orders, either from the political branches or a particular religious group.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), will be published this June.