FROM THE
DECEMBER 18, 2000 ISSUE

JONAH GOLDBERG
Just Like Ozzie and Harriet

RAMESH PONNURU
The Judicial-Activist State

ew court rulings have been denounced as swiftly or as harshly as the Florida supreme court's decision on the night of November 21. At issue was a state statute establishing that within seven days of an election, the results are to be certified. In order to give three Florida counties time to complete their hand recounts of the presidential ballots, the court threw out the seven-day deadline and replaced it with a new one of its own devising. The decision helped Al Gore, and Republicans — outraged — believed that it was designed to do so. The next day, George W. Bush said, "We believe the justices have used the bench to change Florida's election laws and usurp the authority of Florida's election officials." The day after that, George F. Will wrote a ferocious column — all of his columns on Gore's postelection campaign have been wonderfully ferocious — about the decision. The Florida court's "radicalism," he wrote, went far beyond "routine judicial activism."

These criticisms were correct: The Florida court did exceed its lawful powers, with astonishing inventiveness, in a case where the political stakes could hardly be higher. But the court's many defenders had a good point, too, when they said that the justices had not departed from widely accepted legal norms. The difference between their activism and the everyday activism of the courts is one of degree only. Yes, the decision is a scandal. But so is the legal culture of which it is a piece. If the decision has any salutary effect, it will be to draw attention to that culture's pathologies.

Consider the Florida court's arrogance. It overturned choices made by all three branches of Florida's government: by the state legislature, which wrote the certification deadline into law; by the governor, who signed the law, and the secretary of state, who tried to enforce it; and by the circuit-court judge who had approved the secretary of state's effort to enforce it. Remarkable. But is it any more remarkable than a U.S. Supreme Court that, this year, nullified laws passed in 31 states, usually with large margins, to prohibit partial-birth abortion? that, last year, in a case on grade-school "sexual harassment," changed the rules governing every public school in the country? The Florida court claims to be defending "the will of the people" by overruling laws passed by the men and women those people elected. The Supreme Court claimed a similar oracular role for itself in its 1992 Casey decision on abortion.

The Florida court reasoned that two state laws were in conflict. One provision said that returns filed after the deadline "shall be ignored," while another said that returns filed after that date "may be ignored." Gore's team argued that the fact that the secretary of state may ignore late returns does not mean she must ignore them; indeed, she must not ignore them. The Florida justices followed Gore's lawyers through the looking glass. They did so notwithstanding the traditional rule that statutes should be interpreted so as to avoid conflicting with each other.

The U.S. Supreme Court has performed similar sleights of hand. For a few years, it insisted that the Constitution prohibits the death penalty, which the document specifically contemplates. Federal courts are willing to overturn traditional doctrines of interpretation that get in their way, too. Under those doctrines, the courts would have waited to see whether the bans on partial-birth abortion were being applied in an unconstitutional manner; instead, they generally issued an injunction preventing the laws from ever taking effect and then threw them out entirely. And they did so by interpreting the statutes in the most prejudicial way possible.

One of the Florida justices, Harry Lee Anstead, asked during oral argument whether a deadline for recounts would be tougher on large counties, which need more time. Joseph Klock, representing the secretary of state, reminded him that "the fact of the matter is, the Florida legislature has all of this in front of it." Anstead came back, "How do we know that they considered this specific issue?" He thus entirely missed Klock's point, which was that he was raising considerations that should properly be raised in the legislature. The judge was making legislative determinations.

As do the federal courts. They strike down laws based on their authoritative knowledge of the effects of public prayer on the psyches of graduating high-school seniors. They issue detailed regulations (e.g., it's okay to have a crèche on public property if Santa Claus is featured too) and apply them retrospectively.

Republicans complained that the Florida supreme court effectively threw out sections of the state's election law even though it had not shown that law to violate either the state's, or the country's, constitution. Again, the federal courts have acted similarly. In Dickerson, the U.S. Supreme Court this June threw out a federal law on evidentiary standards for confessions. The justices carefully refrained from saying their decision was required by the Constitution, since that would have been difficult to say with straight faces. Instead, they said that the decision had "constitutional underpinnings." Critics of the Florida decision have remarked on its gratuitous swipes at Katherine Harris, Florida's secretary of state. The justices accused her of trying "to summarily disenfranchise innocent electors," which "is unreasonable, unnecessary, and violates longstanding law." According to the critics, the justices were joining a nasty Democratic campaign against Harris.

This, too, isn't as unusual as it sounds. The Supreme Court often strikes down laws it deems "irrational." It struck down an initiative passed by the voters of Colorado on the grounds that it was motivated by "animus" toward homosexuals. These are essentially insults to state legislators and voters. As Robert F. Nagel writes in Judicial Power and American Character, "to a remarkable extent our courts have become places where the name-calling and exaggeration that mark the lower depths of our political debate are given a more acceptable, authoritative form."

The Florida justices suffered some embarrassment when it turned out that their decision had mischaracterized an Illinois case about the interpretation of chads. They had accepted Gore's lawyers' false claims about that case. Surely the Supreme Court in Washington would never fall for such a ruse? Wrong. In Roe v. Wade, seven justices relied on a proabortion academic's claim that abortion was not illegal in British common law — a claim that has subsequently been shown to be false.

There's a reason I've mentioned the Supreme Court's abortion decisions so often. The Florida decision is a product of an antidemocratic legal culture thoroughly formed by those decisions. Roe was the least defensible and most ridiculed of the high court's misadventures, and the task of protecting it has required immense intellectual and legal contortions. Legal academics have expended vast stores of energy devising ever more strained justifications for the Roe holding. They have purported to find abortion rights in the Ninth Amendment's reference to "unenumerated rights," the First Amendment's guarantee of religious freedom, even the Thirteenth Amendment's abolition of involuntary servitude. No doubt some enterprising academic is even now at work proving that a right to abortion is entailed by the Constitution's prohibition on letters of marque and reprisal.

The result is a legal culture — including the legal academy, the judges it favors, and the most influential reporters who write about them — that celebrates freewheeling judicial activism as statesmanship. The Court's corruption has trickled down to lower courts, just as it did a century ago, when state courts took their cue from it to block economic regulations. In today's legal culture, judges moved by their own views of what constitutes "fairness" do not hesitate to cast aside the rules that impede it. Statutes of limitation in product-liability cases can be ignored, for instance, if they would prevent "justice" for victimized consumers. Recount deadlines can be abandoned if they get in the way of a "fair count." And the biggest procedural rule of all — that laws are to be passed by the legislature — will often lead to outcomes that judges find unjust.

The courts, of course, continue to claim that they interpret the law rather than make it up. They go as far as they must to reach their desired results, and no farther. Once they leave the Constitution behind, however, their restraint becomes as unprincipled as their activism. Thus the Florida court offhandedly suggests — in a footnote! — that it might have extended the deadline for requesting recounts, too. In the sentence to which the footnote is attached, the justices piously affirm their "reluctance to rewrite the Florida election code." ("Reluctance" is not quite refusal.)

In the past, people who have suggested that the courts were behaving lawlessly and usurping power were dismissed, even by many conservatives, as alarmist. Four years ago, the conservative journal First Things published a symposium on the subject entitled "The End of Democracy?" That symposium was bitterly criticized, and for many reasons. Prominent among the criticisms was that its title was intemperate. Fr. Richard John Neuhaus, the journal's editor, was said to be irresponsible in suggesting that judicial usurpation was changing the character of the American regime and undermining its legitimacy.

A lot of the commentary since the Florida court made its decision has echoed that earlier controversy. Bush is being chastised for trying to "delegitimize" the court. He is being urged to respect "the rule of law." And what is the rule of law? Gore's campaign chairman, William Daley, explained that it was not a collection of "technicalities." (The rule of law is not a law of rules.) The rule of law turns out to be whatever judges decide to do. They read the will of the people, or the Constitution, the way Democratic canvassers divine the intent supposedly expressed by a disputed ballot.

If Gore somehow wins, judges acting beyond their authority will have effectively picked the next president. But a Bush win would hardly be a resounding defeat for judicial usurpation. Many Republicans want him to win in the Supreme Court, not the Florida legislature. Why? Because, as Wall Street Journal editor Robert L. Bartley pointed out, "the Supreme Court is the one body with the prestige to lend legitimacy to any decision." He's probably right.

Maybe Fr. Neuhaus deserves an apology.