President Bush, in his State of the Union Address, repeated a campaign promise: “Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges. For the good of families, children, and society, I support a Constitutional Amendment to protect the institution of marriage.” The President must know, however, that his amendment is not going anywhere—not last year, not this year, not ever. He needs 67 votes in the Senate, and he has 55, some of whom are squishy. Last year, the President’s amendment got an embarrassing 48 votes. Has he found another 19?
To get a real counteroffensive going, the President just has to follow through on the Republican platform. The platform, adopted in New York City last August, promised to rein in “activist” judges who “threaten America’s dearest institutions and our very way of life.” The President, the platform assured, will “restore the separation of powers and re-establish a government of law.” One way to achieve that goal is to use “Article III of the Constitution to limit federal court jurisdiction; for example, in instances where judges are abusing their power by banning the use of ‘under God’ in the Pledge of Allegiance or prohibiting depictions of the Ten Commandments, and potential actions invalidating the Defense of Marriage Act (DOMA).”
On January 1, Chief Justice William Rehnquist wrote, in his year-end report on the federal judiciary, that attacks on the judiciary have recently taken a “new turn,” including “several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of governmental action.” The Chief Justice does not question the power of Congress to control the Court’s jurisdiction but argues that it is bad policy—it endangers the independence of the judiciary and the rule of law. So, on the one hand, the President says the judges are “activists” meddling in matters better left to the legislature. On the other, the Chief Justice argues that he and his colleagues are hardworking judges who are being unfairly attacked.
The American people need to decide the right role for judicial decisionmaking in a republic. If the judicial function is largely technical, we only need experts trained to read the laws to follow the community’s wishes as expressed by its legislature. That is not controversial. On the other hand, if we believe that judges should maker the rules, their lack of a democratic mandate is a problem. The Court today takes 80 cases out of 2,000 presented to it. Its power to select gives it, in essence, the legislative power of choice. What will it be this year? “Gay” rights? Proper discipline in the first grade? The size of yard signs in a Missouri town? Prayer at football games? The Pledge of Allegiance? The death penalty? Crèches in public squares? The rights of foreign terrorists held at Guantanamo Bay? The Court, if it were technical, of course, would not have been a major issue in every presidential election for the past 40 years.
The traditional view, associated with Learned Hand, favors a very limited judiciary that is, while not purely technical, marked by judicial restraint. The role of the high court is to correct errors made below, of which there are plenty—a job the Supreme Court gave up long ago. It should intervene, as Hand said, in the most extreme situations, but, for the most part, rules are made by elected representatives, interpreted by the courts, and enforced by the executive. The traditional view today is revolutionary—but such a revolution would be celebrated by most Americans.
Last year, the House acted pursuant to Article III of the Constitution, which grants Congress control of the Supreme Court’s jurisdiction—a feature the Founders included so there would always be a democratic check on the Court. A simple statute passed by a simple majority of Congress and signed by the President can assure that each state can decide for itself without fear of being overridden by a Supreme Court-imposed national rule. The same democratic check can be used for any of the culture-war issues that Congress deems better left to the States. H.R. 3313 and H.R. 2028, which, respectively, would have removed “gay marriage” and “under God” from the Supreme Court’s docket—and which, apparently, struck fear into the heart of Chief Justice Rehnquist—died in the Senate after being passed by the House. Standing on his own party’s platform, the President could call for both bills to be reintroduced to a much friendlier Congress and make good on his State of the Union promise.
If President Bush does so, will the Supreme Court adopt Learned Hand’s judicial restraint? It’s a pretty good bet. The Court has a choice: It can watch its jurisdiction break off bit by bit, or it can begin to take a more limited view of the judicial function in a republic. That is a change for which America is ready. The only question is whether President Bush is.
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