Legislating from the Bench: Board of Contributors editorial from March 10, 2013 Waco Tribune-Herald, by David R. Schleicher

Imagine you are a U.S. Supreme Court justice ruling on a law outlawing homosexual conduct. Do you uphold the law because such matters are better left to the discretion of legislatures? Or find the law an unconstitutional interference with liberty and an invasion of the right to privacy? Justice Antonin Scalia was on the losing side in that 2003 case and displeased with what he saw as the majority’s judicial activism.

Scalia wrote that our system was designed so the people (through their elected officials) made such calls instead of having judgments “imposed by a governing caste that knows best.” In other words, since federal judges are not elected, they should not be legislating from the bench. In a close call, they should trust the judgment of those who are elected, even if the judges might have made a different law had they been serving in a state legislature or in Congress. Chief Justice John Roberts has put it this way: “My job is to call balls and strikes and not to pitch or bat.”

Many were stunned that Chief Justice Roberts — widely regarded as very conservative — stood by this principle even though it meant upholding much of the Obamacare law in a 2012 decision. He wrote for the majority in concluding that the health insurance mandate was constitutional because it was done through a tax on those who opted out: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

His approach was in line with the 2008 national Republican Party platform describing “judicial activism” as a “grave threat,” with “unaccountable federal judges” “usurping democracy,” “ignoring the Constitution” and “imposing their personal opinions upon the public.”

Different view

Back to 2013. The Supreme Court is again facing a question of whether a law is unconstitutional. This time it’s the pre-clearance provision of the Voting Rights Act of 1965, which requires certain parts of the country to get advance approval from the U.S. Department of Justice for even what may seem to be minor changes in voting practices such as combining polling locations. Great progress has been made from the days when different standards were openly applied to those seeking to vote, based entirely on the color of their skin. The law has continued to be re-enacted, most recently in 2006 under President George W. Bush, set to endure for the next 25 years. Congress held numerous hearings and entered findings that the law was still justified by examples of voting rights being hindered on the basis of race and color.

The law originally passed with roughly 20 percent of Congress against it. This was at a period in history when a Southern senator would not hesitate to publicly condemn the Civil Rights Act from the prior year as something to be resisted “to the bitter end” for encouraging “social equality and the intermingling” of the races. But by the time of the 2006 vote, as Justice Scalia noted in recent oral arguments, “not a single vote in the Senate (was) against it. And the House is pretty much the same.”

However, just a few years later, Shelby County, Alabama, now argues the time for treating Southern states more strictly than Northern ones has passed — that it was an unconstitutional federal infringement on states rights to require that some states undergo pre-clearance when the blatant racism once shown by election officials is a relic of the past.

2 camps

As often happens, the justices split into two camps, one arguing that deference should be shown to Congress in coming up with the (admittedly imperfect) solution it did. The other camp argued that the very fact Congress acted near-unanimously a few years ago was a sign it could not be trusted to have made a reasoned judgment. Imagine the president or Congress disregarding unanimous Supreme Court decisions on the basis that surely the Court hadn’t put much effort into those.

One justice even had the audacity to say that “it’s a concern that this is not the kind of a questions you can leave to Congress.” This justice may have forgotten that the 15th Amendment not only outlawed denying the right to vote based on race or color, it also directed that Congress had the “power to enforce this article by appropriate legislation.” A judge who is a “constitutionalist” and who loathes judicial activism surely would not substitute his or her personal judgments for these 2006 in-depth findings of a near-unanimous Congress.

‘Grave threat’

At this point, if you’re not enough of a political junkie to have listened to the oral arguments on C-SPAN, you may well be thinking that Justice Scalia was surely up on his high horse, leading the charge against a “governing caste that knows best.” Against what Justice Roberts might call a judge who tries to bat or pitch instead of merely calling balls or strikes. Or what the 2008 Republican platform would label as the “grave threat” of “unaccountable federal judges” who “impose their personal opinions.” We might assume that Justice Scalia would be the one to demand the lawyer before the court answer: “But who gets to make that judgment really? Is it you, is it the Court or is it Congress?”

If so, you assumed wrong, forgetting that the Supreme Court is stocked entirely with humans, a species that has a very poor record of applying their principles when they lead to an outcome they want to avoid. Even when Congress almost unanimously agrees on the best means of achieving a goal it is specifically authorized by the Constitution to undertake, that is not enough to keep some judges from assuming they know better than you and your elected officials.

Justice Scalia spoke with disdain of the motives of Congress, implying the name of the legislation (“Voting Rights Act”) would leave them too cowardly to vote against it. But the very next day the Texas congressional delegation cast more “no” votes than any other state’s lawmakers against reauthorization of a law named for preventing “Violence Against Women.”

“Legislating from the bench,” Scalia teaches us, is only offensive when it means overturning something as run of the mill as, say, a law permitting the arrest of someone for being gay.