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This Week in Liberal Judicial Activism—Week of September 29



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The myth of judicial supremacy:
 
Sept. 291958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy.  The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program.  After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.”  Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply.  As leading liberal scholar Laurence Tribe recently acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”  Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he 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 people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

  
Oct. 21953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice.  In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969. 

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.”  That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan.  To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

  
Oct. 51995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.”  In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.  Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.”  Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”:  “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.”  Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures. 

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Park) shows.  In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit:  “The Ninth Circuit had no warrant to proceed as it did.  The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.”  Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains.  First, the cause of action under which the plaintiff sued creates no remedy against a state.  Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor.  Ginsburg notes this “lapse” in Reinhardt’s reasoning:  “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision.  Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes:  “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask:  Is this conflict really necessary?”  Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism


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