Wednesday, May 14, 2008

McCain’s Supreme Wrongheadedness

Jeff Jacoby in the Boston Globe [excerpts] followed by my comments below the star line

Jacoby begins - - -

IN A SPEECH on the federal judiciary last week, John McCain sounded the familiar conservative call for judges who know their place. "My nominees," he promised, "will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power."

The judiciary's moral authority depends on self-restraint, said McCain, and "this authority quickly vanishes when a court presumes to make law instead of apply it." . . .

But is it really the proper function of the courts to simply rubber-stamp laws passed by Congress and state legislatures? Is a law presumed constitutional merely because elected officials enacted it? ...

Quite the contrary: Judicial deference to the political branches has led to some of the worst judicial decisions in American history. Think of Plessy v. Ferguson, the 1896 case upholding a Louisiana statute that mandated racial segregation in public accommodations.

The Supreme Court certainly deferred to the elected lawmakers who wrote that statute. It also helped lock Jim Crow in place for the next 60 years.

You don't have to go back to 1896 for examples of how liberty suffers when commendable judicial restraint deteriorates into unfortunate judicial passivism.

In a lucid new book - "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom" - legal scholars Robert Levy and William Mellor offer a mournful litany of high-court blunders in the modern era. …

As often as not, the court failed not by being too activist, but by not being activist enough: by allowing the legislative and executive branches to do as they wished, instead of compelling them to stay within constitutional constraints.

The most notorious of the Dirty Dozen is Korematsu v. United States (1944), in which the court gave its sanction to the Roosevelt administration's World War II internment of 120,000 Japanese Americans, none of whom had been accused of disloyalty or sabotage. ...

Kelo v. New London (2005) allowed private homes to be seized by eminent domain and turned over to other private owners - not for "public use," as the Fifth Amendment requires, but merely because the new owners can be expected to generate more jobs or taxes than the owners who were dispossessed. …

To be sure, liberal judicial activism untethered to constitutional limits has been a serious blight on the legal landscape. But judicial passivism has wrought grave harm too.

If elected, Senator McCain says he will "restore the standards and spirit" the Framers intended for the judiciary. He can begin preparing for that task by reading "The Dirty Dozen."

Jacoby’s entire column’s here.


I came to the end of Jacoby’s column and said a silent “Amen.”

I also said “Thank you.”

When I read about Sen. McCain’s speech last week, I was pleased he’d said if President he’d nominate judges like Chief Justice Roberts and Justice Alito.

But from what I read he’d said McCain, while properly critical of “judicial activism,” didn’t acknowledge the duty courts have under the Constitution to strike down laws which violate it. Both Plessy v. Ferguson and Kelo came to mind.

I wanted to post on that. Now today comes Jacoby saying pretty much what I wanted to say, only he does so with a much better grasp of relevant judicial history than I could've mustered.

So thank you, Jeff Jacoby, for providing a powerful column reminding us of one of the duties of the judicary in our system of government.

I hope someone in the media or on his staff calls Jacoby's column to Sen. McCain's attention so he can respond.

For those of you who may be interested in reading "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom" it’s available at Amazon for $17.13. You can also encourage your local librarian to purchase a copy.

Hat tip: for the link and post title.


RedMountain said...

Here is Obama's view on this subject:

"What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings.

And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v Board of Education.

We've got to make sure civil rights are protected. We have got to make sure civil liberties are protected. Because oftentimes there are pressures that are placed on politicians to want to set civil liberties aside, especially at times when we've had terrorist attacks. Making sure we maintain our separation of powers so we dont have a president who is taking over more and more power."


JWM said...

To RM,

I have some differences with Sen. Obama based on some of his votes on judicial nominees, including his vote against the nomination of John Roberts as Chief Justice.

That said, your comment is a model of the kind of thoughtful response we should all hope for from folks "on the other side of the hill."

Thanks for commenting.


11:49 AM

Archer05 said...

Obama’s views: “And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings.“

That would assume the judge has fair perspectives, ethics, and upright moral bearings.

That is a huge assumption. Judges are just lawyers, like Nifong, Spitzer, on and on.

Obama is an attorney, and in my opinion, failed attorneys taking over the government is part of our downfall.

Anonymous said...


"Here is Obama's view on this subject:"

If true, why did Obama vote against Judge Roberts? More slick talk?

Rather than give us meaningless gibberish, RM, please provide a quote from Obama on who he would prize as a judge.


Anonymous said...

I think you and Mr. Jacoby are making a false assumption. The absence of Judicial activism does not equate to rolling over and rubber-stamping any law that is passed. Most believe the absence of Judicial activism equates to a Court which decides cases based upon the Constitution and case law. Nothing more.

Archer05 makes a good criticism of Mr. Obama's statement. When a jurist brings in his/her feelings, perceptions, and other baggage, the law suffers.

Jim in San Diego said...

A problem with judicial activism, which I interpret to mean judges who do not closely follow the law in their rulings, is that it unbalances the checks and balances of the three branches of government.

If judges rule within the law, and the result is bad, then the legislature may change the laws.

If judges rule outside the law, there are no checks left to restrain them.

Most people who favor judicial activism presume that judges will be active in their philosophical direction. That is, they will rule as if the laws were what the listener wishes they were.

This is a poor presumption. The better alternative, and one safest to all of us, is for judges to rule within the law.

Jim Peterson

Anonymous said...

John -

I looked up Plessy v. Ferguson in Wikepedia (link:
Plessy_v._Ferguson) and it's more complicated than Jeff Jacoby indicated. What that Court did was to overturn the Civil Rights Act of 1875 the Congress had passed. Instead it recognized a state law that set up separate but(un)equal, and stood the 14th Amendment on its head. It would seem the Court's deference should have been and should be to the national legislature and to the Constitution, and not to state law in violation of both of those.

I might add that those like redmountain who see courts as a force for good (however defined) have to take into account the bad courts have done. (Anon at 3 PM has it right.) It was after all, the Taney decision in the Dred Scott case that led to the Civil War (and it was not even from the decision per se; it was from the obiter dicta that found the Missouri Compromise unconstitutional). Of course, there's Plessy v. Ferguson, and I might add, Roe v. Wade. (Whichever side you are on in the latter, that decision should be made through legislation; it should not be legislation made through a court's decision.)

Jack in Silver Spring

RedMountain said...

Thanks for the kind words. If you look at the reasons Obama voted against John Roberts a chief justice you will find a very similar opinion as to what I quoted in the first post.

Link to his statement can be found here:

It turns out that Obama was correct in his assesment and his concern, as Roberts wrote the 5-4 majority opinion that limited the scope of the Brown v Board case cited by Obama in my first post. HRC also voted against Roberts, based on her opinion of his stance on abortion and another landmark case that might come before the court in the near future. She may turn out to be accurate in her position on this as well.

Neither Obama nor Clinton had any question about his qualifications, just their opinion of how he might influence major cases like Brown v Board or Roe v Wade.

Obama has said on several occasions that he would not be where he is today without the Brown v Board decision so it is not surprising or out of character for him to vote the way he did.