McCain's justice-Conservative activism gone wild

By Geoffrey R. Stone (Chicago Tribune)
May 7, 2008

Sen. John McCain's speech on Tuesday on the role of judges in our constitutional system might very well qualify as one of the most ignorant statements ever made by a presidential candidate on this important subject.

McCain complained that sitting judges and justices systematically "abuse" the federal judicial power by issuing "rulings and opinions on policy questions that should be decided democratically." McCain, seeking the Republican nomination for president, is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans. As Pogo once said, "We have met the enemy, and he is us."

McCain also seems stunningly unaware that the justices he simplistically lauds as "judicial passivists" are nothing of the sort. William Rehnquist, Antonin Scalia and Clarence Thomas, and more recently John Roberts and Samuel Alito, have consistently voted to invalidate laws at a record clip, most notably holding unconstitutional a broad range of laws regulating commercial advertising, limiting corporate campaign expenditures and authorizing affirmative action programs to enhance educational diversity—to say nothing of Bush vs. Gore. This is not strict construction and it is not judicial restraint. It is conservative activism gone wild—in judicial robes. McCain just doesn't understand.

Even worse, McCain mocks the lifetime tenure of federal judges and assails what he scorns as liberal "judicial activism." Interestingly, McCain confidently invokes the framers of the Constitution as authority for his claim that what we need in this nation are more judges who will exercise "self-restraint." But after chiding Sen. Barack Obama, a Democratic presidential contender who actually knows something about constitutional law, McCain betrays his complete lack of comprehension of the U.S. Constitution and of the goals and concerns of those who crafted it.

A fundamental challenge facing the framers of our Constitution was how to restrain intolerant, self-interested, and prejudiced majorities in order to ensure that they would not run roughshod over the rights and liberties of minorities. As James Madison observed, "the greatest danger" to liberty was to be found "in the body of the people, operating by the majority against the minority."

Early in the constitutional process, Madison expressed skepticism about the value of a Bill of Rights. As a practical matter, he simply did not see how a Bill of Rights could "provide any check on the passions and interests of the popular majorities." Indeed, "experience teaches the inefficacy of a bill of rights on those occasions when its control is most needed," for "overbearing majorities" tend simply to ignore these "parchment barriers." In a governmental system in which the majority can have its way, Madison asked Thomas Jefferson, "What use . . . can a Bill of Rights serve?"

In a letter back to Madison, Jefferson (who was in Paris at the time) extolled the role courts could play in enforcing a Bill of Rights. Jefferson urged Madison to consider "the legal check" which the Constitution "puts into the hands of the judiciary," a "body, which if rendered independent . . . merits great confidence for their learning and integrity."

Shortly thereafter, when Madison presented the Bill of Rights to the first Congress, he echoed Jefferson's argument, contending that if these rights are "incorporated into the Constitution, independent tribunals of justice will consider themselves . . . the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights."

The "solution" to the seemingly insoluble dilemma of how to enforce the guarantees of the Bill of Rights against the "overbearing majorities" that would inevitably control the legislative and executive branches was thus, in part, the third branch—the judiciary, which could serve as "an impenetrable bulwark" against majoritarian encroachments on the fundamental liberties of political, social, religious, economic and other minorities.

Unlike McCain, the framers fully understood that lifetime tenure was not a mere perk of office, but an essential condition of the American constitutional system. The hope was that life tenure would insulate judges from the need to curry favor with the prevailing political majority, and thus free them to act on principle.

As John Adams affirmed, for judges to be able to undertake this solemn responsibility, they must be firmly independent of the other branches of government and must hold "their positions by a permanent tenure in no way dependent upon the will and pleasure of the executive." Without that independence, Adams added, it would be absurd "to look for strict impartiality and a pure administration of justice, to expect that power should be confined within its legal limits, and right and justice done." A critical insight of the American constitutional system was the recognition that judges needed independence not only from the executive and the Congress, but, in Madison's words, from "the people themselves."

During the ratification debates, Alexander Hamilton passionately argued that constitutional limits could "be preserved in practice no other way than through the medium of the courts of justice," and he maintained that "the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." The "independence of the judges," he reasoned, is "requisite to guard the Constitution and the rights of individuals from the effects of those ill humours which the arts of designing men . . . sometimes disseminate among the people themselves." Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."

The truest aspirations of American constitutionalism are embodied in the decisions of the Supreme Court in cases like Brown vs. Board of Education (declaring racial segregation unconstitutional), Gideon vs. Wainwright (guaranteeing a person accused of crime the right to counsel), Reynolds vs. Sims (insisting on one person/one vote), Harper vs. Virginia Board of Elections (prohibiting the poll tax), and Frontiero vs. Richardson (protecting women against unconstitutional discrimination). The framers understood that our nation needs judges and justices who protect the rights of the minorities, the oppressed and the downtrodden, not judges and justices who abuse the Constitution in order to protect the interests of commercial advertisers and corporate political contributors.

To paraphrase McCain, "the moral authority of our judiciary depends" not on false promises of "judicial restraint," but on real promises of judicial wisdom—the sort of wisdom that Jefferson, Madison, Adams and Hamilton banked on when they drafted our Constitution.

Geoffrey R. Stone is a University of Chicago law professor.