On March 4, 1861, during his first inauguration speech, Lincoln said:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.12
Less than fifty years later, Woodrow Wilson, a leader of the Progressive movement who served as the twenty-eighth president from 1913 to 1921, would take the opposite view. In fact, he endorsed flat-out judicial tyranny. In 1908, Wilson argued:
The character of the process of constitutional adaption depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the option and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretations,—the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaption has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity. . . .13
It is worth noting that Lincoln, who insisted on judicial limits, led the effort to abolish slavery. Contrarily, Wilson, who demanded an all-powerful court, enthusiastically supported segregation.14
Hence, in Wilson’s view, the federal judiciary was to behave as a perpetual constitutional convention—without the benefit of representation and input from the states—rewriting the Constitution as a relative handful of judges divine the merits of this or that issue, nearly always promoting the centralization and concentration of power in the federal government. Of course, the constitutional structure and amendment processes are thereby eviscerated. Yet this view has gained common acceptance and widespread adherence in legal and political circles, and the behavior is self-perpetuating, for no effective systemic mechanism has been initiated to curb or halt its imprint on the Constitution.
Indeed, a movement is and has been afoot in academia and in the courts to institutionalize within the Constitution, via the judiciary, social and economic agendas that should be left to the body politic. For example, Georgetown University law professor Robin West argues that “[w]e need . . . a progressive jurisprudence—a jurisprudence that embraces rather than resists, and then reinterprets, our liberal commitment to the ‘rule of law,’ the content of our individual rights, and the dream of formal equality. More inclusive interpretations—more generous reimaginings—could then undergird, and in a principled way, particular constitutional arguments. Rather than relentlessly buck, deconstruct, and vilify the seeming ‘naturalness’ of legal arguments based on moral premises, we ought to be providing such premises, and natural and general arguments of our own. But first we need to re-imagine.”15
Similarly, Yale law professor Bruce Ackerman has campaigned to “interpret” the Constitution’s Fourteenth Amendment to implement the so-called Second Bill of Rights, in which President Franklin Roosevelt declared that the federal government should ensure “[t]he right to a useful and remunerative job in industries or shops or farms or mines of the Nation; to earn enough to provide adequate food and clothing and recreation; of every farmer to raise and sell his products at a return which will give him and his family a decent living; of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home and abroad; of every family to a decent home; to adequate medical care and the opportunity to achieve and enjoy good health; to adequate protection from the economic fears of old age; sickness, accident, and unemployment; to a good education.”16 Ackerman said his “aim is to redeem the lost promise of the Fourteenth Amendment’s vision of national citizenship through the enactment of framework statutes and the judicial development of the meaning of ‘privileges’ and ‘immunities’ of American citizenship.”17
For Georgetown University law professor Louis Michael Seidman, the answer to the further centralization of government is not to waste time with deceptive and deceitful interpretations of constitutional provisions by his fellow law professors, as acceptable as that might be to those who seek the fundamental transformation of America, but to abandon the Constitution outright. He states plainly what others in academia and the legal profession have promoted less forthrightly. Seidman argues, “As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions. . . . If we acknowledged what should be obvious—that much constitutional language is broad enough to encompass an almost infinitely wide range of positions—we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. . . . ”18
It would seem that numerous Supreme Court justices are in essential agreement with Seidman’s disdain for the Constitution. Too often they look for ways to elude the Constitution’s limits in order to impose their own personal policy preferences on the parties before them and society generally. One such method has been an increasing reliance on international law to supposedly justify their rulings. For example, in 2000, Associate Justice Ruth Bader Ginsburg complained that the Court did not have the “same readiness to look beyond one’s shores” as other nations. “The Supreme Court has mentioned the Universal Declaration of Human Rights a spare five times and only twice in a majority decision . . . nor does the U.S. Supreme Court note the laws or decisions of other nations with any frequency.”19 She has said that a “boldly dynamic interpretation departing radically from the original understanding” of the Constitution is sometimes necessary.20 Indeed, Ginsburg is not particularly impressed with the Constitution, despite having taken an oath to uphold it. In February 2012, while appearing on Egypt’s Al-Hayat TV shortly after the Muslim Brotherhood, among others, overthrew Egyptian president Hosni Mubarak, and advising the Egyptian people on the adoption of a new constitution, Ginsburg said, in part, that “[y]ou should certainly be aided by all the constitution-writing that has gone on since the end of World War II. I would not look to the U.S. constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. . . . It really is, I think, a great piece of work that was done. Much more recent than the U.S. constitution—Canada has a Charter of Rights and Freedoms. It dates from 1982. You would
almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world?”21
In 1988, then–associate justice John Paul Stevens referred to international standards in the case Thompson v. Oklahoma, respecting the execution of criminals less than sixteen years of age.22 In 2003, Associate Justice Stephen Breyer, a proponent of consulting international law in constitutional cases, gave a speech before the American Society of International Law in which he proclaimed that the “global legal enterprise . . . is now upon us.”23 In 2003, Associate Justice Anthony Kennedy cited extensively from international law when writing the Court’s decision in the Lawrence v. Texas sodomy case.24 There are numerous other examples.
Former associate justice Sandra Day O’Connor was even more explicit. In 2002, she asserted in a speech that “[a]lthough international law and the law of other nations are rarely binding decision on U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.” She added, “While ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face.”25 In 2003, O’Connor wrote, “As the American model of judicial review of legislation spreads further around the globe, I think that we Supreme Court justices will find ourselves looking more frequently to the decisions of other constitutional courts, especially other common-law courts that have struggled with the same basic constitutional questions that we have; equal protection, due process, the Rule of Law in constitutional democracies.”26 In 2004, she declared in yet another speech that “[i]nternational law is no longer a specialty. . . . It is vital if judges are to faithfully discharge their duties.”27
Of course, foreign statutes, constitutions, and judicial decisions have no legitimate relation at all to the proper role of a Supreme Court justice. The legislative history, text, and intention of lawmakers or, respecting the Constitution, the Framers’ intent, cannot be divined by inquiring into or relying on international authorities. As I wrote in Men in Black, “The Court has so fundamentally altered its duties, and so completely rejected the limits placed on it by the Constitution’s checks and balances and enumeration of powers, that the justices are in an endless search for extra-constitutional justifications and interventions to explain their activism.”28 The Court that was given life by the Constitution cannot operate outside it. Its only rightful and lawful authority exists solely within and related to the Constitution. James Madison put it this way: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security.”29
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Reality informs us that human beings are imperfect, including the mere nine individuals who serve on the Supreme Court. The fact that they hold law degrees from prestigious schools, wear black robes, and are each referred to as “Your Honor” does not change the fallibility of their nature. Nor does the fact that from time to time the Court issues rulings with which much of society agrees or which might be considered just or even exceptional. Even monarchs have been occasionally benevolent and wise. But this does not change the essential character of authoritarianism and the general mind-set of those who would rule over citizens as subjects. In fact, history belies the notion of enlightened governing masterminds, immune from republican attitudes and values. Whatever one may think of the Marbury decision, it cannot be denied that today the Supreme Court’s power is of the sort Wilson envisioned.
For example, the Court has issued numerous politically determinative decisions, nearly all of which promote a trajectory of expanded federal power, including the Court’s own authority, in defiance of the Constitution’s structure and limits. On such occasions, the justices contort the facts and the law, as they must, to reach their desired result. In the 1942 Wickard v. Filburn case, the Court ruled that the Interstate Commerce Clause encompasses commerce that is intrastate and, therefore, the federal government has the power to regulate endless forms of private economic activity, including the production of goods and services for one’s own use or use within a state; in the 1947 Everson v. Board of Education decision, it declared the long-standing balance between government and religion void, and the existence of a “wall of separation” between church and state, leading to the banning of prayer, nativity scenes, and crosses, among other forms of religious expression, in the public square in states and localities across the nation; in the 1965 case Griswold v. Connecticut, the Court found that the Constitution’s so-called penumbras and emanations prohibited states from banning the sale of contraceptives (a ban that was rarely enforced); in its 1982 decision in Plyler v. Doe, the Court conferred a constitutional right on millions of illegal alien children to a free public education; in the 2003 Lawrence v. Texas case, the Court ruled that sodomy is a constitutionally protected privacy right (such laws were already being repealed by most states); and, in the 2012 Obamacare decision, the Court ruled that a penalty is a tax (contrary to the statute’s text, legislative history, the Court’s precedent, and the Constitution’s text) and, therefore, the federal government has the power to force individuals to purchase government-designed private health insurance policies.30
Of course, there are many such examples. Some among us cheer these decisions; some denounce them. But should five individuals be making these political and public policy decisions and imposing them on every corner of the nation and every part of society? Should they have the final say on such matters, as they pursue even newer and more novel paths around the Constitution in exercising judicial review? It is important to recognize that the Supreme Court’s record is, at times, grievous. In addition to the Dred Scott decision, in which the Court perverted the Constitution to promote slavery, other notable examples include the 1896 Plessy v. Ferguson holding, where the Court sanctioned racial segregation in public facilities under the doctrine of separate but equal; the 1944 Korematsu v. United States decision, where the Court gave license to the U.S. Army’s internment of tens of thousands of Japanese Americans without due process; and Roe v. Wade, the 1973 ruling in which the Court legalized abortion throughout the nation with no constitutional basis.31
• • •
Judicial review can be exercised for good and bad; it can be exercised wisely and foolishly. That is the Court’s record. It is the record of every governing body in the United States. It is truly absurd that so many defend the evolutionary role of the modern Court as supreme to all other institutions of government and insist on the finality of its rulings. Barely one hundred justices have served on the Supreme Court. As few as five justices can dictate economic, cultural, criminal, and security policy for the nation. One new justice, replacing a retiring or deceased justice, can sway the Court in one direction or another. Hence, the political battles for “control of the Court” when vacancies occur.
In Men in Black I explained, “The biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been mentally impaired, venal, and even racist.”32
Consider a few of the stunning personalities who have served on the Court: John Rutledge, a 1795 recess appointment as the nation’s second chief justice, was considered mentally unstable; Henry Brockholst Livingston, appointed in 1806, killed a man in a duel before his appointment; Henry Baldwin, appointed in 1830, was reportedly insane; Robert C. Grier, appointed in 1846, became mentally incapacitated yet continued his duties on the Court; Nathan Clifford, appointed in 1858, suffered a stroke and became a “babbling idiot”; Stephen J. Field, appointed in
1863, gradually lost his mind; Joseph McKenna, appointed in 1897, became mentally unstable and resisted retirement; James C. McReynolds, appointed in 1914 (by Woodrow Wilson), was a notorious anti-Semite and racist; Hugo Black, appointed in 1937 (by Franklin Roosevelt), had been a member of the Ku Klux Klan and remained on the Court despite his declining mental health; William O. Douglas, appointed in 1939, allegedly sexually assaulted a flight attendant in his chambers and remained on the Court despite suffering an incapacitating stroke; Abe Fortas, appointed in 1965, continued to advise President Lyndon Johnson after his appointment and supplemented his Court salary from a foundation set up by a convicted stock swindler, and was eventually forced to resign; Thurgood Marshall, appointed in 1967, in his waning years apparently spent many hours watching television in his chambers, especially soap operas.33
The mechanisms the Framers put into operation relating to the judiciary were designed to achieve certain vital purposes that would, in turn, help ensure the successful operation of the federal government they established. They knew the sordid history of monarchs and bureaucracies compromising jurisprudence to serve political ambitions, and they did not want that result in the United States. They sought the independence of the judiciary to help establish and preserve the integrity of the federal judicial system and, by extension, the federal government itself.