Bench Memos

NRO’s home for judicial news and analysis.

No Disconnect by Feeney


Matt suggested yesterday that there was a possible “disconnect” in Representative Feeney’s article, insofar as Feeney first said that judicial policymaking which supercedes legislative enactments is not democratic, and later in the same article criticized Breyer for his decision upholding McCain-Feingold. With respect to Matt, Rep. Feeney does not contradict himself. First, let’s look at what Rep. Feeney said in context:

“[Breyer] wants an ‘independent judiciary’ under the guise of ‘active liberty’ to impose ‘democratic results’ that representative, elected legislatures, and Congress have refused to impose on us. Judges imposing biased versions of ‘active liberty’ for ‘democratic results’ is an oxymoron: Policies dictated from the bench that nullify decisions made by representatives (statutes enacted or proposals rejected) elected in regular elections are, ipso facto, not democratic.” (emphasis added).

It is clear that Feeney is not offering the Cass Sunstein (and, on various occasions what seems to be Matt Franck’s critique)–that is, that the very act of striking down an act of Congress is per se anti-democratic. While it makes some superficial sense to say that an unelected judiciary’s act of striking down legislation is anti-democratic, such a view fails to take into account the democratic nature of the Constitution, and somehow construes a simple majority in the legislature as being more “democratic” than the supermajorities that formed the Constitution and its amendments. When viewed in that proper light, striking down genuinely unconstitutional legislation favors the supermajority over the majority. That said, Rep. Feeney did not make the Sunstein critique, but rather denounced as anti-democratic Breyer’s call for judges to impose their own policy (the key word in Feeney’s sentence) preferences in the place of the legislatures’ policy decisions. That is a far cry from discerning the will of the supermajority as expressed in the Constitution, and comparing that to the will of the majority as expressed in legislation. Thus, there is no disconnect in Rep. Feeney railing against judges imposing rank policy preferences as anti-democratic in one breath, and denouncing judges for failing to properly interpret the Constitution by striking down clearly unconstitutional laws in the next.

I also disagree with Matt’s suggestion that perhaps “the First Amendment contains no judicially applicable principles that can be brought to bear on campaign-finance-policy questions, and the justices were right to leave this mess to Congress.” I’m guessing that Matt bases this argument (and indeed, the thrust of his post) on his myopic interpretation of judicial review, because his musing certainly finds no support in the opinions of any of the Justices in McConnell, or in the numerous prior opinions of the Court regarding campaign finance, or in modern scholarship concerning the First Amendment, or in the text of the First Amendment itself. Just in case there is any confusion, let me be clear: the issue of judicial review (or, if Matt prefers, its contours) is a dead letter on which there is no serious debate outside the most ivory of towers. And, fortunately, the overwhelmingly prevailing view—that is, the view that the courts have the authority to strike down unconstitutional legislation—is the right one. (See, e.g., my response to Matt on the subject here.) Conservatives should not let disdain for judicial supremacy or for abuses of the court cloud their judgment in this area.


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