Earlier this month, Alabama state attorney general and filibustered judicial nominee William Pryor arrived at Harvard Law School, an institution that The Economist once deemed “the command center of American liberalism.” Pryor came to speak on “Christian Duty and the Rule of Law,” and in doing so he issued a compelling reminder: The judicial activism preached by countless legal scholars is not the province of only one political party. The activism of the liberal Massachusetts Supreme Judicial Court is no different from the activism of the conservative Alabama judge Roy Moore. And in neither case is it justified.
In his Federalist Society-sponsored speech, Pryor–accused by Democrats of being an activist threat to abortion rights, prisoners’ rights, women’s rights, etc.–detailed his efforts to remove Moore from the bench following the Alabama supreme-court chief justice’s refusal to remove a Ten Commandments statue from the state courthouse.
Responding to opponents of his nomination to the federal bench, who see his “deeply held beliefs” as cause for concern, Pryor explained how his religious beliefs support, rather than oppose, the rule of law. In remarks drawn largely from an essay published last year in the Cumberland Law Review, he first explained why his enforcement of a court order to take down the Ten Commandments monument was not in conflict with his Christian duty. But his comments were not limited to mere defenses of his own actions. Instead, he criticized Judge Roy Moore for violating his own oath to support the rule of law by defying a federal court order to remove the Commandments from the courthouse. He declared Moore’s judicial defiance to be a “dangerous politicization of the law.” Pryor excoriated the editors of Human Events, the conservative newspaper that named Moore its Man of the Year, saying they “should be ashamed of themselves.”
Pryor’s criticisms culminated in the warning that “judicial activism, whether from the left or the right, is destructive to the Constitution.” This statement, unheard by the Harvard Law professors who unanimously avoided the Friday speech, cuts straight to the heart of the fallacy of activist jurisprudence. The liberal professors who rally around activist judges (on the Ninth Circuit and elsewhere) are, at heart, no different from religious activist Roy Moore. Both brands of activist ignore the written law of constitutions, statutes, and controlling precedent where their political preferences run to the contrary.
Pryor’s remarks stood in stark contrast to those delivered by professor Laurence Tribe only a day before. The embodiment of Harvard jurisprudence, and counselor to Senate Democrats in the judicial-nominations battles, Tribe told another Harvard Law School audience that the Massachusetts supreme court’s opinion requiring the legalization of gay marriage was “a masterpiece”–a sentiment so indefensible that even three other participating liberal professors voiced objection. Tribe, like such contemporaries as Cass Sunstein and Ronald Dworkin, promotes a jurisprudence that ignores the principle of fidelity to constitutional text. Instead, he constructs a vast mishmash of legal argument grounded in everything but the original intent of the Framers as embodied in the text of the Constitution. Not surprisingly, the practical outcomes of the jurisprudence coincide nearly perfectly with the precepts of modern American liberalism. What a happy coincidence … or, more accurately, jurisprudential charade.
Pryor, despite allegations by Charles Schumer and Pat Leahy to the contrary, takes no such liberties in his philosophy of law. His political beliefs have often stood at odds with his legal duty as attorney general. Each time, he fulfilled his duty to the law. Indeed, one need look no further than Pryor’s prosecution of Judge Moore: Despite his own longtime defense of the constitutionality of displaying the Ten Commandments in courthouses, his prosecution of Moore was vigorous and masterful, culminating in a predominantly Republican bench unanimously removing Moore from office. But his choice to fulfill his legal duty, and uphold the rule of law, instead of pushing for his own political preference is not a one-time occurrence. As Pryor detailed in his Judiciary Committee testimony, in 1997 he interpreted a new Alabama partial-birth-abortion ban as narrowly as possible, contrary to the demands of the governor and of conservatives across the state, because he interpreted Roe v. Wade to require as much. And despite his longtime support for tort reform, he publicly criticizes the Supreme Court’s 2003 decision that severely curbed the discretion of state courts to award large punitive-damage grants.
In his Harvard address, Pryor fielded questions regarding his thoughts on the duty of the judge and the impact of precedent. One student questioned the power of the federal appellate judge–the position to which Pryor has been nominated–to ignore precedent where the Supreme Court’s rulings contradict not only the judge’s politics, but also his own interpretation of the constitutional text. As always, his vocal commitment to the rule of law was unwavering: “If there’s precedent squarely on point, and it’s not been cast into doubt by more recent precedent, then the judge is bound to follow it.”
As Pryor explained further, while the appellate-court judge may voice his displeasure with the opinion, even inviting the Supreme Court to overturn precedent, he has no right to ignore precedent himself. Pryor’s convictions, as summarized in his speech and writings and demonstrated by his past actions, stand in marked contrast to Charles Schumer’s characterization of Pryor’s fitness for the bench:
It’s just not enough to say “I will follow the law.” Every nominee says that. … I don’t like nominees too far left or too far right, because ideologues tend to want to make law, not do what the Founding Fathers said judges should do, interpret the law. And in General Pryor’s case, his beliefs are so well known, so deeply held that it’s very hard to believe, very hard to believe that they’re not going to deeply influence the way he comes about saying, “I will follow the law.”
Schumer, himself a Harvard Law graduate, delivers warnings that bear no relation to Attorney General Pryor’s record. If anything, they suggest that Schumer’s own judicial philosophy is so controlled by his own politics, so predetermined by party platform, that he cannot conceive of a politically-engaged judge subordinating politics to law.
Liberal Democrats surely have been pleased by recent court rulings in cases involving gay marriage, affirmative action, and campaign-finance reform. Likewise, conservative Republicans may point to the “success” of judicial restrictions on punitive damages, just as they once pointed to Lochner and other examples of Progressive Era conservative judicial activism with pride. But in doing so, they attach their political fortunes–indeed, their very liberty–to a phony foundation. No matter how much they may protest to the contrary, Charles Schumer, Laurence Tribe, Roy Moore, and the editors of Human Events all are of the same ilk. Only the rule of law, as defended by Attorney General Pryor and those of like mind and conscience, can save them from each other, and from themselves.
–Adam White is a student at Harvard Law School, where he is editorial-page editor of the Harvard Law Record and a member of the Harvard Federalist Society.