Radio talk-show listeners know Mark R. “F. Lee” Levin well. President of the Landmark Legal Foundation, Levin is a frequent guest on/fill-in host on the Rush Limbaugh and Sean Hannity shows. He’s also got his own show on weeknights in New York (WABC). But his first love is the Constitution, and that’s the focus of his new book, Men in Black: How the Supreme Court Is Destroying America. In Men in Black, Levin gives a brief, accessible history of judicial activism and offers possible solutions to curb it.
Levin talked to NRO editor Kathryn Lopez earlier this week about the book, the state of the courts, and what he recommends to better the situation (some of them controversial on both the Left and Right).
National Review Online: You use the word “tyranny” to describe the state of the courts today. Isn’t that a tad overly dramatic?
Mark R. Levin: When judges or, my book’s focus — Supreme Court justices — act without authority, and do so with impunity, that’s tyranny. When justices seize authority from the other branches of the federal government, as well as state and local governments, under the rubric of judicial review, that’s tyranny. When justices veto legislative acts based on personal policy preferences, that’s tyranny. Today, no less than five Supreme Court justices are on record, either through their opinions or speeches (or both), that they will consult foreign law and foreign-court rulings for guidance in certain circumstances. Of course, policymakers are free to consult whatever they want, but not justices. They’re limited to the Constitution and the law. This behavior frustrates and disenfranchises the American people and thwarts representative government. I have no doubt the Framers would view the Court’s behavior in this regard as tyrannical. If we’re going to address the problem, we should have the courage to call it what it is.
NRO: When you think dictatorial activist judge/”radical in a robe,” who comes to mind first?
Levin: Justices are not imbued with greater wisdom, judgment, or compassion than any other citizen. Some justices have been senile, racist, and crooked. Some have been brilliant, honorable, and exceptional. There’s no reason, even outside the constitutional framework, so much authority should be exercised by so few. Activist justices come in many stripes but, as a rule, they use their lifetime positions to impose by fiat that which should be decided through the democratic process. They don’t believe they’re bound by the Constitution’s firewalls. Justices Stevens, O’Connor, Kennedy, Souter, Breyer, and Ginsburg are activists.
NRO:This isn’t so new on the scene, right? How long has judicial activism been a problem?
Levin: Activist Supreme Courts are not new. The Dred Scott decision in 1856, imposing slavery in free territories; the Plessy decision in 1896, imposing segregation on a private railroad company; the Korematsu decision in 1944, upholding Franklin Roosevelt’s internment of American citizens, mostly Japanese Americans; and the Roe decision in 1973, imposing abortion on the entire nation; are examples of the consequences of activist Courts and justices. Far from being imbued with special insight, these decisions have had dire consequences for our governmental system and for society.
NRO: Do people really care about judicial activism? Do they get it?
Levin: I think the general public is becoming increasingly aware of, and concerned about, the judiciary’s power. The public sees the courts issuing increasingly extreme and even bizarre decisions, which receive considerable media attention. And if the callers to my radio show are any indication, they know what’s going on and don’t like it one bit. More recent examples of judicial activism that have outraged many include the Supreme Court finding that homosexual sodomy is a constitutional right; cyberspace child pornography is protected speech, but certain broadcast ads prior to an election are not; judicial decisions based on the nonexistent “wall of separation” notion resulting in the removal of God, the Ten Commandments, Nativity scenes, and even Santa Claus and Christmas trees from the public square, as well as challenges to the Pledge of Allegiance.
NRO: I think a number of conservatives tend to think about judicial activism in terms of so-called social-conservative issues: marriage and abortion. But judges have put up obstacles to the war on terror, haven’t they (even this week)?
Levin: The judiciary micromanages many aspects of society. As I state in the book, activist judges have taken over school systems, prisons, private-sector hiring and firing practices, and farm quotas. They have ordered local governments to raise property taxes and states to grant benefits to illegal immigrants; they have upheld severe limits on political speech, promoted racial discrimination in admissions policies, endorsed the seizure of private property without just compensation, struck a federal ban on partial-birth abortion, and intervene in the electoral process.
Last summer, for the first time, the Supreme Court took an active role in a war, ruling that foreign illegal combatants have due-process rights under the Constitution. The Court largely left it to the lower courts to determine those rights, and this week a Carter judge, in a stunning decision, ruled that the Fifth Amendment’s Due Process Clause — presumably, nothing less than the full array of due-process rights belonging to U.S. citizens — applies to al-Qaeda and Taliban detainees.
NRO: The Supreme Court endorses racism? Why doesn’t the ACLU care?
Levin: The ACLU does a lot of things I don’t fully comprehend. This is one of them.
NRO: When did the Supreme Court start making immigration policy?
Levin: The Court started legislating on immigration matters, in earnest, in the early 1980s. Despite no constitutional authority, it has ruled, among other things, that illegal immigrants have a right to public education, non-citizens cannot be excluded from civil-service jobs or the bar, and states cannot impose residency requirements on non-citizens as a condition of receiving government benefits.
NRO: You would amend the constitution to insert term limits. What do you say to a) people who say that’s too radical b) folks who argue “don’t bother” because amendments are too hard to get through.
Levin: Actually, I would like the Constitution to be amended in two ways: 1. term limits for justices and judges; and 2. authorizing Congress to veto Supreme Court decisions with a super-majority (two-thirds) vote of both houses. I actually believe the second systemic change is more important than the first.
I support term limits for two basic reasons. First, if justices and judges are going to behave like politicians, legislating at will, they should not serve for life. Moreover, especially as applies to Supreme Court justices, too many have served well beyond their ability to perform their duties.
As for empowering Congress to veto Court decisions by a super-majority vote, the rationale is not at all radical when put in historical context. The framers authorized a super-majority of Congress to override a presidential veto. They were concerned about the concentration of too much power in the presidency. They viewed Congress as the branch of government closest to the people. The framers never imagined a judiciary as powerful as today’s courts, supplanting the constitutional authority of the other branches. Also, a super-majority vote by Congress creates a high bar, making the congressional veto of Supreme Court decisions a potent but rarely used constitutional weapon. Still, it gives ultimate authority to Congress.
Yes, the amendment process is very difficult. Its success will depend on how serious Congress and the states — and ultimately the people — are about redressing many decades of judicial abuse. In my view, the debate needs to move forward, and the best way to do that is to focus on possible remedies. Consequently, these are my recommendations. The test of time will determine whether they, or others, or any, are considered seriously.
Congress also has the authority to deny the courts jurisdiction over a broad range of issues as well as determine the make-up of the lower courts. The exercise of these powers do not require a constitutional amendment. I endorse Congress exercising its constitutional authority as a check on the courts.
NRO: The people being talked about for the next Supreme Court opening: Are they all originalists?
Levin: The ten or so candidates mentioned in the news reports all appear to be originalists.
NRO: Would you put bets on who the first nominee will be?
Levin: No. Blackjack’s my game.
NRO: Obstruction wouldn’t seem like a winning issue for Democrats, given the last election.
Levin: It takes only 41 senators to filibuster a judicial nominee — or successfully threaten a filibuster. Most of these senators are in safe or relatively safe seats. There may be a few exceptions. Presumably, the Senate Democrats have made these political calculations. Otherwise, they are driven more by ideology than political survival. In either event, there’s no indication they intend to drop the filibuster without a fight. After all, the liberals have had a steady string of losses at the ballot box, and they view the judiciary — and particularly the Supreme Court — as the only way to advance much of their agenda. Perhaps they believe the loss of a senator here or there as a price they’re willing to pay to retain an ideological advantage on the Court.
NRO: Is there any chance the Dems won’t obstruct again on judges — Supreme Court and lower courts?
Levin: No. The Senate Republicans must change the Senate rule on filibusters to prevent their use against judicial nominees.
NRO: When you compare Memogate — liberal groups dictating Senate Dems’ moves — to the grassroots move against Arlen Specter as judiciary chairman late last year you see a dramatic difference in how interest groups operate on the Left and Right. I thought Republicans were supposed to be in the pocket of the Religious Right — that’s what you hear about, anyway. Just how influential are the People for the American Ways and NARALs and how did they get to be that way?
Levin: The memoranda reveal an astonishing relationship between Senate Democrats and their liberal interest groups. The groups appear to dictate strategy to the senators — whether to hold hearings, when to hold hearings, the need to delay a nominee to influence a court decision, whether to conduct a filibuster, and so forth. They have enormous influence over Senate Democrats. They have this influence because the resources they can bring to a judicial battle — including media buys, grassroots operations, and research. And the people who back these groups are important Democrat donors. For example, People for the American Way was founded by Norman Lear, and is funded heavily by Hollywood.
NRO: How do you like NYC talk radio life?
Levin: I love talk radio, and have since I was a teenager. I’ve learned a great deal from listening to and talking to Rush and Sean. It gives me an opportunity to vent to a large audience on a daily basis, and to engage in stimulating discussions with people from all walks of life. I appreciate the opportunity WABC (770 AM) provided me, as an untested host. It seems to have worked out. My show is #1 on AM from 6-8 pm, and #4 overall. I’ve been blessed and I know it.