'Heads I Win, Tails You Lose'
An explanation of liberal legal philosophy.
opinionjournal.com
BY RANDY E. BARNETT
Tuesday, December 12, 2000 12:01 a.m. EST
I have long been amused by those modern liberals and leftists who try to instruct conservatives as to what "true" conservatism requires of them--particularly when conservatives get uppity and actually gain control of some institution of governance. Conservatism, say the scolds, requires that one accept and "conserve" the welfare/regulatory state that "progressives" have been building for 60 years.
We are now experiencing a judicial version of this phenomenon: judicial activists and nationalists instructing conservatives and federalists about the meaning of judicial restraint and federalism. Typically the words "activism" and "restraint" lack content and I prefer to avoid them. But here "judicial activism" refers to courts that are willing to overstep the bounds of either the Constitution, or unquestionably constitutional statutes, to impose their will on the other branches of government and on the people themselves.
That this is what the Florida Supreme Court did in its 4-3 ruling last week has been pointed out by others, including the chief justice of that court. Still, it is useful to recall that the whole mess began way back on Nov. 17 when the Florida Supreme Court issued the following stay: "In order to maintain the status quo, the Court, on its own motion, enjoins the Respondent, Secretary of State and Respondent, the Elections Canvassing Commission from certifying the results of the November 7, 2000, presidential election, until further order of this Court." Had they restrained themselves back then, Al Gore would already have conceded the election and David Boies would be looking for another Microsoft to sue.
Everything we have experienced since Nov. 14 stems from that supremely activist intervention into the recount process, but it was not until this past Saturday that the charges of judicial partisanship began to fly furiously. Not at the Four Horseman of the Florida Supreme Court mind you, but at the Party of Five "conservatives" on the U.S. Supreme Court who took away the keys to the punch-card counters by issuing a stay of their own to "preserve the status quo" in Florida. Then came the cry, as if in unison: How dare these conservatives interfere with states' rights? How dare they act by a bare majority? Aren't they the ones always preaching about federalism and judicial restraint? Well, this reveals the conservative justices for the hypocrites they have always been!
As one who believes in a judiciary that actively polices the lines between the powers of government and the rights retained by the people, as well as between the powers of the national government and those of the states, and between the powers of one branch and those of another, I find this argument amusing. For it amounts to a "heads I win, tails you lose" theory of judging. Conservative justices confronted with activist legislatures must roll over in the name of restraint, thus creating a convenient one-way ratchet of constantly expanding government and the erosion of any separation of powers or federalism.
And now we learn that, in the name of federalism and judicial restraint, conservative and federalist justices must "defer" to a state supreme court that showed no deference whatever to the legislature which set election deadlines and procedures, to the Florida secretary of state--a constitutional officer--who attempted to adhere to those deadlines, to the circuit court judge who ruled that the secretary of state had acted within her statutory discretion, to the circuit court judge who ruled that the canvassing boards had not abused their discretion, and to the U.S. Supreme Court itself, which had unanimously urged the Florida Supreme Court to retreat to a neutral corner.
Where were the panel discussions on judicial deference and restraint then? No, back then we were instructed that it was shockingly bad form for James Baker III or anyone else to question the integrity of a supreme court.
Well, the rules of decorum have switched again. Now, and only now, we are urged that judges must exercise "restraint." Or at least we are urged that conservative judges must exercise the restraint they say they believe in. It is a convenient argument indeed. A kind of intellectual jujitsu that tries to turn an opponent's own thrusts against him. Activist judges are acting true to their principles when they escape the bounds of the law, while conservative justices are hypocrites if they abandon their principles of "restraint" to bring wayward courts back to earth. Heads, activist justices win; tails, conservative justices lose.
The counter to this maneuver is the simple proposition that conservatives of both the political and judicial variety sometimes forget: It is a judge's role to actively adhere to the Constitution and protect the rights of the people. If this means "actively" striking down legislation or lower court rulings that violate the clear mandates of the Constitution or that exceed the proper powers of a legislature or government official, then that is what we have judges for. Restraint means staying within the boundaries of the Constitution and of constitutional laws. Restraint in the face of those who exceed those boundaries is simply an abdication of judicial authority.
If the U.S. Supreme Court was correct to find that the Florida Supreme Court had likely overstepped the bounds of Article II of the 14th Amendment, or of federal law, it was no violation of "judicial restraint" to stop the Florida vote count marathon. And it will be no violation of restraint to reverse the rule of the Florida judges and to restore the rule of law. Conservatives would be wise to remember this in the future whenever when they find themselves urging judicial restraint in the face of other types of usurpation by judges, by legislatures or by law enforcement.
Mr. Barnett is a professor at Boston University School of Law and author of "The Structure of Liberty: Justice and the Rule of Law" (Oxford University Press, 2000). |
