Though public opinion may shift quickly, the justices must not play politics with law

by Randolph J. May
Legal Times, November 24, 2003

Writing last month, Washington Post columnist David Broder observed: "The start of another Supreme Court term . . . reminds us that the most influential single public official in the land may not be anyone in elective office but Justice Sandra Day O'Connor." Then, with seeming approval, he added: "O'Connor is a great one for finding the center, not just of legal disputes but of the political spectrum."

Contrast this with what Alexander Hamilton wrote in The Federalist No. 78 more than 200 years earlier: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would be the substitution of their pleasure to that of the legislative body."

Drawing the line between will and judgment, between improper judicial lawmaking and proper judicial interpretation, is easier said than done, of course. The Constitution, after all, has a lot of indeterminate and vague language. Nevertheless, the establishment of a judiciary with independent authority to invalidate legislation in and of itself demonstrates that the Founders envisioned a constitutional regime in which law and politics would not be one and the same.

Politics, which reflects the will of the people, can be uncertain and sometimes quick to change direction. But the law ill-serves us when it too becomes willful, uncertain, or readily changeable. It's a distinction that judges must consider when looking at what they've done, bearing in mind what they will be asked to do. [Perhaps the recent nonstop Senate debate, the "Justice for Judges Marathon," will provoke a broader discussion among the American public, too, concerning how judges go about the business of judging.]
 
THE CONSTITUTION IN TIME

Unfortunately, a common element in the reasoning behind last term's two most notable decisions tilts too far in the judicial lawmaking direction. In both Lawrence v. Texas, which overturned a state statute criminalizing same-sex sodomy, and Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action program, the Court employed time-bound, of-the-moment reasoning to decide constitutional questions that one hoped would have been addressed in language more timeless.

Here's what I mean. In rejecting the challenge to the law school's admissions program, Justice O'Connor wrote her now-famous statement that "race conscious admissions policies must be limited in time" because a core purpose of the 14th Amendment's equal protection clause is to do away with all government discrimination based on race. Any departure from the equal treatment norm must be "temporary." Thus, O'Connor said, she expects the Grutter deviation will no longer be necessary "25 years from now."

While O'Connor looked ahead a quarter-century to a time when [she hoped] government conduct could be brought in line with what the Constitution requires on a "permanent" basis, Justice Anthony Kennedy in Lawrence looked back only a few decades to find "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Kennedy relied heavily on this "emerging awareness" to find that Texas' same-sex prohibition violated the 14th Amendment's due process clause. He thus overruled Bowers v. Hardwick [1986], which had sustained the constitutionality of a similar Georgia statute less than 20 years earlier.

The point here is not to debate the wisdom of race-conscious admissions policies or same-sex sodomy laws, or all the legal aspects of these two admittedly difficult cases. What the constitutional guarantees of equal protection and substantive due process require are, concededly, unclear and unfixed. But there is nothing in the ordinary understanding of these terms that implies they should be interpreted in a dynamic, quickly evolving manner. Because the rationales in Grutter and Lawrence were articulated in a way that closely tied the outcome to a constitutional moment in time -- not yesterday or tomorrow, but today -- these decisions look like judicial lawmaking intended to achieve particular policy results.
 
NEW VIEWS

There are instances where it may be more appropriate to base a judicial outcome on a constitutional moment in time. Consider the Court's capital punishment jurisprudence. Like due process and equal protection, the Eighth Amendment's injunction against cruel and unusual punishment is vague. But the word "unusual" lends itself to an interpretation that is more easily tied to a particular moment. Thus, in Gregg v. Georgia [1976], when the Court held that capital punishment does not invariably violate the Constitution, it looked closely at recent actions of state legislatures for evidence of evolving community standards. It even looked at contemporaneous poll results, referencing a Gallup poll that showed 57 percent of the American people favoring the death penalty.

But what about other constitutional issues that fiercely divide Americans? When the inevitable challenge to Congress' newly enacted partial-birth abortion ban comes before the Supreme Court, imagine that the Court sustains the ban on the basis of what it determines to be a recent "emerging awareness" that the liberty interest protected by Roe v. Wade [1973] should not extend as broadly as articulated for the past few decades. Suppose the Court relies, even in part, on the fact that Congress passed the ban with broad bipartisan support [on a 281-142 vote in the House and 64-34 in the Senate] and, what's more, on a Nov. 6 Gallup poll showing that 68 percent of Americans agree that the procedure should be illegal.

If the Court were to take such an approach, it would be at odds with the tenor of the plurality opinion in Planned Parenthood v. Casey [1992]. While Justices O'Connor, Kennedy, and David Souter expressed considerable reservations about Roe's reasoning, they refused to overrule it, relying heavily on the value of precedent and the public expectations precedent creates, regardless of "whether or not a new social consensus is developing on that issue."

Indeed, in refusing to overrule Roe, the plurality cited approvingly Justice Potter Stewart's earlier statement: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of government." Doesn't the overruling of Bowers in such short order, based in substantial reliance on an asserted new developing social consensus, invite the same skepticism that Lawrence is based on ground no firmer than a change in the Court's composition?
 
'GROUNDED TRULY IN PRINCIPLE'

In Casey, the plurality grandly proclaimed: "The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make." To the extent that its opinions instead are grounded in language that explicitly ties constitutional principles to the Court's own understanding of the desires of the present moment, as the Court's language in Grutter and Lawrence does, the door is left open to ready suggestions that the justices' personal political preferences have trumped the law.

Under our constitutional system, the two political branches share responsibility with the judiciary to protect our individual rights. But as Hamilton recognized in The Federalist No. 78, there is no escaping the fact that the judiciary, the "least dangerous" branch, is the ultimate guarantor of our constitutional freedoms against the popular passions that sway the legislature and executive.

Because decisions resting on a newly emerging societal trend or a perceived exigency are peculiarly susceptible to charges that judges are playing politics, they undermine the public's confidence in the Court. As the Casey plurality acknowledged, lacking sword or purse, "the Court's power lies, rather, in its legitimacy." When judges are praised for finding the center of the political spectrum, the judiciary's legitimacy is called into question. And if the Court ever loses the public's respect, we will be uncomfortably close to the day when the rule of law gives way to the law of raw politics.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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