Why Liberals Are Wrong to Castigate the Right Wing For Its Critique of the Judiciary:
Some of the Critique of "Justice Sunday II" Rings True, Regardless of One's Politics

By EDWARD LAZARUS

Thursday, Aug. 18, 2005

Last Sunday, conservative religious leaders convened "Justice Sunday II," the sequel in what may prove to be a series of church-based rallies where fundamentalists rail against the federal courts. In particular, these rallies have targeted judicial rulings protecting abortion rights and the rights of gays and lesbians.

On Tuesday, The New York Times's lead editorial decried Justice Sunday (in both its iterations). The editors argued that religious conservatives and the political leaders, like House Majority Leader Tom DeLay, who bask in their support, are engaged in a dangerous assault on the vital "independence of the judiciary."

I have no truck with Justice Sunday II or its organizers. A lot of what was said there is obviously wrongheaded. Some of it was truly extremist. And the underlying motivation, which is to impose conservative Christian values on the whole nation, I find abhorrent.

All that said, it is a little too easy and glib to pretend that everything these right-wingers have to say about judicial power should be dismissed as mindless, chalked up to mere hostility toward the courts for their liberal decisions, and, thus, ignored.

Dobson's Basic, Structural Critique of the Judiciary: Why It's Hard to Argue With

Take the Times editorial. It starts by complaining that James Dobson, the influential founder of the evangelical group Focus on America, inexcusably "demonized the judiciary as 'unelected, unaccountable and arrogant.'"

Dobson merits criticism on many grounds. He's a gay-bashing, anti-choice culture warrior of the most extreme variety.

But in calling the judiciary "unelected," unaccountable," and, heaven forbid, "arrogant," he really can't be seriously faulted. The federal judiciary is, indeed, unelected (and life-tenured). As a result, the judiciary is also largely unaccountable.

Theoretically, judges can be impeached. But the last judicial impeachment for political or ideological reasons dates all the way back to 1805, when Jeffersonian Republican unsuccessfully sought to remove Justice Samuel Chase, a lightning-rod Federalist judge. A two-hundred-year-old precedent is hardly going to keep modern judges in line.

As for arrogance, that trait is largely in the eye of the beholder. But I don't know many people, including members of the judiciary, who would suggest that the judicial branch is free of arrogance. It pretty much comes with the job description.

Indeed, for all John Roberts's talk of modesty and humility in approaching the law, it ordinarily takes a healthy ego to exercise the power of judicial review and, thereby, police the actions of the other branches of government.

Focusing Much-Needed Attention on the "Counter-majoritarian Difficulty"

In addition to being reasonably accurate, Dobson's comments raise an important point that the general public may not think about often enough: The judicial branch occupies a somewhat anomalous position in this democratic polity. Although judges are unelected and largely unaccountable, we allow them the power to veto the actions of our elected officials whenever those judges, in their own discretion, think the elected officials have overstepped their constitutional authority.

As constitutional law professors often point out, this judicial check on the power of elected officials creates what they call -- in their peculiar argot -- the "counter-majoritarian difficulty." Supposedly, we live in a democracy where majority rules. And yet, unelected judges have a broad power to overrule majority decisions. When they exercise this power -- the power of judicial review - they substitute their judgment, the judgment of appointed officials, for that of elected ones.

How can this difficulty be addressed? By judges' taking care when they do - and more importantly, do not - exercise their power. To keep our democracy a true democracy, judges should only use their anti-democratic veto power when the Constitution strongly requires it -- not simply when judges disagree, as a matter of policy, with the decisions of elected officials. Constitutional judgments are for judges to make; policy decisions are exclusively the province of legislators and executive branch officials.

Is the Current Supreme Court Overstepping Its Proper Role Within Our System?

No doubt, Dobson has a one-sided and probably indefensible view of when, historically, judges have overstepped their bounds. He can't be faulted, however, for raising the real and important - and much more basic - issue of whether we need to reexamine the current balance between judicial power and the power of the elected branches of our government.

After all, the current Court is second-guessing elected federal officials at an unprecedented rate. Shouldn't we all be asking whether the justices are right to be doing so?

Congressman Tom DeLay's comments at Justice Sunday II have also drawn criticism. Like Dobson, DeLay has plenty to answer for. Leaving aside his problematic ethics, DeLay counts among his various dubious achievement passage of "Terri's Law" - Congress' tragically ill-conceived and destructive attempt to insinuate itself into the sad end-of-life drama of Terri Schiavo.

So what did DeLay have to say on Sunday? He declared that "All wisdom does not reside in nine persons in black robes. The Constitution is clear on the point that the power to make laws is vested in Congress."

To be sure, DeLay has engaged in questionable judge-bashing in the past, but his much-quoted comments on Sunday were pure pablum. They also provide a useful reminder. We do have a tendency to idolize the Supreme Court justices and to look upon them as fonts of definitive moral and legal judgment.

In pointing this out, DeLay was largely echoing a wise nostrum of a much-revered member of the Court itself, Justice Robert Jackson -- who famously remarked that the Supreme Court's judgment on matters of law is not final because it is infallible; it is infallible because it is final.

Congress's Lack of Self-Policing Plays Into the Myth of the Judiciary as the Main Font of Wisdom

In our system, each branch of government has an independent duty to think hard about its constitutional responsibilities. For Congress, this means not only carrying out its constitutional mission to make the nation's laws (exactly as DeLay said), but also to do so while exercising independent judgment about the constitutional limits on its authority.

Members of Congress, too, take oaths to uphold the Constitution. They ought, therefore, to honor them - rather than passing unconstitutional legislation and leaving the judiciary to clean up the mess.

As matters stand now, Congress does little self-policing and implicitly encourages the judicial branch to do all the hard constitutional thinking about the limits of congressional power and the meaning of our Constitution. In short, Congress itself has played a role in creating the public perception that all wisdom does indeed reside with the Supreme Court's nine justices. And DeLay should not be faulted for pointing out this unhealthy and unrealistic view.

Close Supreme Court Votes Are Troubling, But a Unanimity Rule Is No Answer

To be sure, Justice Sunday II produced some wacky and unfortunate suggestions for judicial reform. For example, William Donohue, the president of the Catholic League for Religious and Civil Rights, suggested that the Constitution be amended to provide that the Supreme Court could invalidate an Act of Congress only by a unanimous vote.

This is a very bad idea. Our system of checks and balances depends on effective judicial review of congressional enactments. A unanimity rule would give a single, unelected, life-tenured justice veto power over the exercise of this vital counterbalance to a congressional power. Each Justice would thus have the power - and temptation - to become a tyrant.

Sometimes, though, even bad ideas contain a kernel of truth - and this one does. The current Supreme Court does not just strike down congressional enactments at a record-breaking pace. It also does so quite often by a 5-4 vote - meaning that a single justice in effect (usually Justice O'Connor or Justice Kennedy) decides the fate of a federal law.

To some extent, this narrow margin cannot be escaped. The Court is narrowly divided on many important issues - just like the country at large. Still, inside the Court, the justices might think twice before so frequently exercising their most far-reaching authority - the power to override legislative judgments - by the slimmest possible margin.

There may well be some close cases in which it would be better for the justices to give the benefit of the doubt to the judgment of elected officials, rather than override that judgment by a single vote. For example, the Court sometimes votes 5-4 to strike down legislation even though the five justices in the majority do not themselves agree on the reason why the law at issue is constitutionally infirm. Such splintering may well present a reasonable occasion for giving an added modicum of deference to the judgment of elected officials.

Criticisms of the Judiciary Are Not Inherently Attacks on Its Independence

Separate from the merits of the particular comments that emanated from Justice Sunday II, my point here is mainly that we really should not be dismissing every sharp criticism of the judiciary as an attack on judicial independence.

Of course, public officials and private advocates should be excoriated for giving encouragement to fringe groups or individuals who target judges for harassment, or otherwise unsettle the privacy and sense of security to which judges are entitled. Extremely strong measures need to be taken against anyone fomenting violence - or, indeed, campaigns of personal harassment -- against judges.

But the judicial branch is not above reproach, or even reform. Because judges are unelected and life-tenure, virtually the only way for the public to express disapproval of judicial action is through public criticism. And that channel should be used more - not less - frequently.

What the framers once described as "the least dangerous" branch of our government, now routinely wields enormous authority. That is not necessarily a bad thing. But it raises questions central to our self-definition as a nation.

Those questions are well worth debating -- and Justice Sunday II, despite sending a message with which I vehemently disagreed, at least serves the purpose of sparking a conversation that is long overdue.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.