Judicial Restraint

OpinionJournal.com today features a lamentation respecting the (allegedly) increasing attacks on the Judiciary, penned by erstwhile Associate Justice Sandra Day O’Connor. Heronor worries that the increased frequency of "attacks" upon judges "... presents a grave threat to the independent judiciary".

When an advocate for an "independent judiciary" offers such an argument, I fairly burst with the question: "independent of what?" If, by "independent", one means that a Judge must follow where the law leads, irrespective of the political consequences, that is PRECISELY what a judge must do. If, on the other hand, one defines "independent" as free from any constraint upon one’s unbridled discretion, I respectfully dissent.

Justice O’Connor humbly admits that Courts sometimes arrive at incorrect decisions. But her solution lacks a certain pizzazz: "Judges can--and do--sometimes render erroneous decisions, but that is why appeals are allowed to higher courts." Ah. The only check upon a rogue -- or simply mistaken -- Judge rests with more judges. But what happens when the Court which issues the most indefensible opinions also happens to be the Court of last resort?

Unsurprisingly, the folks who commented on Justice O’Connor’s piece displayed very little sympathy for her position, and quite properly so. In brief, they responded: "you (judges) brought it on yourselves".

New Jersey should understand this in spades. Our Supreme Court almost single handedly created the insolvable property tax crisis with the utterly absurd decisions in Robinson v. Cahill and Abbott v. Burke, neither of which decision enjoys even the slightest pretense of support in the actual document the Court purported to construe. The Court helped create sprawl with the indefensible Mount Laurel decisions. It engaged in a spectacular version of creative constitutionalism in death penalty cases, essentially making up the rules as it went along. It invented a right to abortion out of whole cloth, when there exists not a shred of support for that policy in the document. In the reapportionment cases, it proved that it is not only illiterate, but innumerate as well, failing to understand that 1+1=2, not 3. In the Torricelli and Suliga cases, it simply ignored statutory language it considered problematic (essentially because the Legislature did not add the words "AND WE REALLY MEAN IT" after it established seemingly inviolate time limits). And it’s a very good bet that the Court is about to invent a right to gay marriage.

Some of the results of these decisions might constitute good policy. In the US Supreme Court’s case of Lawrence v. Texas, the Court ruled that a state may not proscribe voluntary sexual contact between consenting adults, a result which any good libertarian ought to cheer. But any student of the appropriate scope of judicial power ought to cringe in agony. However desirable the result might be, no Court possess the right to rewrite the Constitution to compel it.

Our federal Supreme Court, likewise, often sits as a permanent constitutional convention, ignoring constitutional rights which actually ARE present in the document (the right to keep one’s property absent governmental seizure thereof for "public use") and creating "rights" which do not. (Privacy).

Some folks aver that the Constitution is a "living, breathing document". Au contraire (to cite foreign precedent in support of an American constitutional argument). The meaning of the Constitution is fixed and immutable. It means precisely the same thing today as it meant when the people adopted it. If society feels that changes need to be made, the amendment process offers the only legitimate method of effecting such changes. Every time I hear the Constitution referred to as "living and breathing", I immediately want to wrestle it to the ground and make it stop twitching around. The foundation for all other law rests on that document, and the consequences of building an edifice of law on a foundation which refuses to stay still can be disastrous.

Judges most certainly SHOULD fear for their jobs when they behave in a manner which demonstrates that they failed to read the job description. They are not oracles, endowed with black robes to lead a benighted people into a more enlightened age. Their role does not include pronouncing on "evolving standards of societal decency"; the words "penumbras and emanations" should be excised from their vocabulary. Their SOLE legitimate role is to interpret the document placed before them in light of the intentions of those who wrote and adopted it.

People around the nation react with completely understandable fury when unelected lawyers purport to create social policy. All the judiciary need do to avoid being the subject of political crusades is stay out of politics as, for instance, leaving the definition of marriage to the Legislature, where it belongs.

This issue has particular relevance to New Jersey voters this year. The most recent appointments to the Supreme Court – John Roberts and Samuel Alito – represent precisely what judges ought to be. Perhaps unsurprisingly, Bob Menendez voted against Alito and, likely, would have echoed Senator Lautenberg’s vote against Roberts.

Both Roberts and Alito were stellar choices, fabulously qualified. And, yet, Menendez voted against Alito for reasons which clearly indicate that he, Menendez, also doesn’t care about the legitimate scope of judicial authority, provided that the Judge delivers the preferred policy outcome.

Tom Kean supported both these inspired nominations, despite the fact that on some issues, he probably would support policies which the Judges, as Justices, would decline to impose upon the American people as Constitutional imperatives. In so doing, Kean demonstrates that he understands the appropriate role of a Judge, whereas Menendez most certainly does not.