Judges in the American constitutional system have long faced the temptation of making law themselves when they find existing law to be inadequate or wrong. In earlier eras, the U.S. Supreme Court found a natural right to slave owning (Dred Scott vs. Sandford), and a natural right to at will employment. In our own day, judges tend to find that people have a natural right to the sexual identity and activity that they want. But the constitutional system ought to warn against using judicial conscience rather than law as a guide.
This point was well made by Thomas B. Griffith, judge of the United States Court of Appeals for the District of Columbia Circuit, and St. Vincent College Professor Bradley C.S. Watson, a noted political scientist and lawyer, during an event at Hillsdale College in Washington, D.C., on October 12. In introducing Griffith, Watson noted that he could be considered one of Washington’s most powerful but least famous people. Seated in the nation’s capital, the D.C. Circuit is the court of original jurisdiction for important cases involving federal rulemaking. Having served as general counsel to Brigham Young University, Griffith has a special interest in the integrity and role of religious colleges.
Griffith recounted his experience as a conservative judicial nominee of President George W. Bush in 2005, when Senate Democrats were filibustering Bush’s judicial nominees. In former Senate Democratic leader Tom Daschle’s office, he was asked if he believed in natural law. This, he recounted, had been a key question asked of Supreme Court Justice Clarence Thomas at the time of his confirmation. Griffith responded that he didn’t “have a lot of confidence in a judge’s ability to decide based on natural law.” But when he was then asked what his favorite judge was other than John Marshall, Griffith’s answer was Robert Bork. He said that he had “hitched his cart to Judge Bork.”
Griffith next considered how well Judge Bork’s views “worked out” (presumably how influential they have been since Bork’s failed nomination). Not very well, Griffith thinks. Griffith said he generally reads legal briefs, not legal theory. Taking the advice of another legal expert, he said that judges who want to learn should teach courses and read important books to keep abreast of their field. He said that there are important books for “Article III judges” (with the power of judicial constitutional review). The reading strategy, he said, should be to start with Robert Bork and Antonin Scalia and “then read all comers,” in particular mentioning Stephen Breyer and Ronald Dworkin. From his reading, Griffiths has concluded at least in some measure “Bork was wrong,” but Griffiths said he is still an originalist.
Griffith said that the kind of judges the framers of the Constitution had in mind were common law judges who adjudicated according to natural law. The problem with this, Griffith said, is the detailed legislative power outlined in the Constitution involves “only political action.” There is no place for a common law judge making moral decisions according to natural law.
And yet judges, Griffith noted, are more than clerks, simply finding law and applying it without using their judgment. He recounted advice given him on his first day as judge by another judge to: 1) learn the facts of a case, 2) “think long and hard and deep about the just solution,” and 3) find law to support the position one finally arrives at.
Griffith said he took a vow that day to “always do the first,” and “never the second.” A judge, Griffith said “must be a faithful agent of the people even when they are wrong.” He noted that Bork had said the judges who rule by conscience “ruin the democratic political process.” This, Griffith believes, is a cautionary note to conservatives. We “must never lose sight of the very limited judicial role.” The law has been made by the political branches and “sometimes you win, and sometimes you lose.”
Watson began his comments by observing that “the state of judicial conservatism is not good.” Conservatives have tried cultivating judges as a means of making conservative judicial philosophy prevail.
“Where has this gotten them,” Watson asked. How, he asked, did the “least dangerous branch” in Alexander Hamilton’s telling, become the most dangerous branch? The anti-federalist commentator “Brutus” feared that judges would be “independent of the law itself.”
Today, Watson said, “enumerated rights are read out of the Constitution” in favor of unenumerated rights (most notably religious freedom is read out in favor of sexual rights). The Constitution has become a “mere ornament” to desired outcome. Watson maintained that today “much of the future of constitutional government depends on who the next justice of the Supreme Court is.”
The founding fathers respected natural law, equality before the law, and a politically equal footing of the citizenry. The Constitution was founded on the rule of the people. These principles are now “supplanted by a progressive doctrine of history.” This doctrine gives priority to what is understood as the historical “unfolding of the rational will.” According to this view, we “must look to the future to see where we should go now.” It is, he said, is a contemporary form of “judicial nominalism,” in which the words of the law have no real meaning. Instead of the text of the Constitution and enacted statutes, judges use “historically revealed preferences.”
But what truly is the controlling idea now with progressivism, Watson maintained, is not a law of history – as it was for past progressives – but a “contemporary psyche.” There is also “a Darwinian sense that we must evolve or die.” This “militates against the Constitution.” The old progressivism, which could at least be clearly understood by the average person, who might agree or not, died with President Woodrow Wilson, Watson said. Words are now understood only by elites. There is now “literally no constraint on the power of state action.” One is now a “pariah” if one does not accept the new meanings. It is held that all meaning is constructed. The result is a “Tower of Babel project” to reconstruct reality. The new progressives “deny the moral universe as even Kant or Hegel did not do.” In the face of this, conservatives must “roll over or fight.”
A questioner asked by what means originalists could fight back. Watson responded that we should “pick the right case.” Executive nonenforcement is an option. Impeachment of justices is more difficult.
Griffith agreed with the “lay of the land” as Watson described it. He saw two problems: 1) a cultural problem (apparently today’s culture is at variance in basic ways with that of the constitutional founders), and 2) “the judiciary is too powerful.” But the second problem, he said, is at least in part a natural result of expanded government, which means courts must decide disputes.
A second question to Griffith was how the common law judges anticipated by the founders are consistent with the limited government that the founders provided for. Griffith said that “the founders intended moral judges, but the political system [they established] does not allow it.” Evidently then, this was an inconsistency in their vision. Watson added that when judges enter politics (as they not uncommonly do today with a progressive moral vision), they can expect to be targets of political attack. Griffith said that “courts must police the separation of powers.” He noted that Justice Scalia had said that it is the separation of powers, not the Bill of Rights, which gives freedom.
Another questioner asked if the people rule through laws, or by only one law (the Constitution). The response was that it is a “big deal” if the approximately 4,000 words of the Constitution govern regulation. The proper situation is that the people pass the law and the judges enforce it. Even Justice Elena Kagan has conceded that it is “the law all the way down” that should determine judicial rulings. Here it seemed to be observed that she and other liberals are at least giving lip service to the rule of law.
Watson observed that in the United Kingdom, where there is no written constitution, common law judges try to do the equitable thing, but unlike federal judges in the United States, they cannot forbid Parliament from passing laws in the future that they believe violate the basic sense of justice by which they adjudicate. This writer would observe, however, that while the judiciary in Great Britain traditionally does not have power to overrule the legislature, the European Court of Human Rights has now introduced a measure of the socially liberal ideological jurisprudence that Americans have long known.
While the admonition that judges are to interpret the law, not make the law, is good and should be repeated – fear of public outcry probably does act as some restraint – there seems to be no good constitutional means to restrain the courts from doing what they think is the right thing when it conflicts with the law. Impeachment is the most proper means, and since Congress is its own judge of what is impeachable, it ideally should impeach overreaching judges for the true offense – sedition (i.e., since courts arrogate to themselves power which is not theirs). But as Watson noted, impeachment is not a realistic means of restraining judges, because the body politic is too deeply divided for it to be successful. Determined and persevering legal service organizations, which the Left has long had and which conservatives now have, are vital in court battles.
It is likely that Watson is correct that executive non-enforcement of egregiously unconstitutional rulings – Chief Justice John Marshall was famously told to enforce his own ruling, although his ruling was just – and public noncompliance where citizens must act against their consciences, seem most likely to be effective in keeping the judiciary in its proper role of applying, rather than making, law.