A Case of Supreme Temptation
by Jack Wade Nowlin
The close of the Supreme Court’s 1999–2000 term raised the perennial question of the degree to which the Court, the presumptive guardian of our constitutional liberties, itself may constitute a threat to those liberties. Indeed, can we safely rely on the Court to issue fair and dispassionate rulings about constitutional meaning, or is the nation’s highest tribunal with disturbing frequency simply a “lawless” institution, one whose decisions are driven more by ideology and partisanship than by constitutional principle? A series of decisions handed down in the last few days of the Court’s most recent term—in the face of strong dissenting opinion—lends additional credence to the latter view.
Four Hostile Decisions
In Hill v. Colorado, for instance, the Supreme Court broke sharply with its carefully crafted free speech precedents in order to uphold a state law placing severe restrictions on the speech of pro-life demonstrators, counselors, and educators outside of abortion clinics. As Justice Scalia noted in dissent, this decision all too plainly pivoted on the majority’s abortion rights political concerns. “What is before us,” Scalia observed, “after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.” Indeed, in light of the Court’s highly dubious abortion jurisprudence, Scalia concludes that “having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.”
In Stenberg v. Carhart the Court also continued its campaign to limit the political rights of American citizens, striking down a Nebraska law prohibiting the grisly practice of “dilation and extraction” or “partial-birth” abortion. Scalia, again dissenting, observed that “the notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”
In Santa Fe School District, the Court struck down a procedure allowing students to elect a student to speak before high-school football games because such activity could at some point involve a student-approved, student-led prayer. Scalia joined a dissent in which Chief Justice Rehnquist observed that “even more disturbing” than the Court’s holding is “the tone of [its] opinion,” which “bristles with hostility to all things religious in public life.” Indeed, the Court’s current establishment clause jurisprudence, as the Court itself admits implicitly, is not supported by the text, original understanding, or our earlier constitutional traditions, and, in any event, scarcely mandates this extreme result.
Finally, in United States v. Dickerson, a case involving a law of Congress that made the absence of Miranda warnings simply one factor affecting the admissibility of confessions rather than an absolute bar, the Court took the extraordinary step of striking down the law while refusing to forthrightly state that it actually violated the Constitution. In fact, three of the seven justices voting to invalidate the law are on record in previous Miranda cases as holding that Miranda warnings are not a requirement of the Constitution but rather simply a judge-made “prophylactic rule.” These justices declined either to retract their earlier statements or to uphold the law in question. They were, then, willing to strike down a law of Congress that they would not say, and seemingly do not believe, actually violates a constitutional provision rather than a mere judicial rule. Justice Scalia, dissenting, concluded that “the Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress.”
A Political Machine
Justice Scalia, who has served on the Court for 14 years with great distinction, paints a bleak picture of the majority of his fellow justices. In his view, the current Court serves as an “ad hoc nullification machine” when politically “favored” practices such as abortion are at issue; it has launched a continuing assault on many of our fundamental political rights; it evinces bristling hostility to religion in public life; and it manifests an evident willingness to strike down laws that are not in fact unconstitutional. In short, the general thrust of Scalia’s criticism is that the Supreme Court, driven by ideology, routinely abuses its power of judicial review in violation of the very Constitution its members are sworn to defend.
Of course moral traditionalists are particularly concerned that the Court’s activism in recent years has benefited social liberals on an important range of issues, such as abortion and school prayer. Yet the abuse of judicial power should be of concern to every citizen regardless of his views on these political questions. Notably, this term Justice Scalia also implicitly criticized “pragmatic” and partisan court watchers, pointing to the crucial distinction between “those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results,” and those who demonstrate the proper (constitutional) concern with the judicial process, with the grounding of decisions in the legal principles of the Constitution. Indeed, even a strong advocate of abortion should be disturbed by the Court’s reckless disregard for the constitutional limits on its own powers, and its willingness, even eagerness, to politicize its role in American governance. Such actions should disquiet anyone who values his constitutional rights more than he values a tactical political victory or two.
Judicial Supremacy
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