Term-Limit Justices, Let Congress Veto Court Rulings
by Mark R. Levin
Posted Dec 19, 2006
This is the sixth in an occasional series of exclusive articles in
which leading conservatives who served in the Reagan Administration
explain how they believe the principles of Reagan conservatism ought to
be applied today and in the coming years. This week, Mark R. Levin, who
served as chief of staff to Atty. Gen. Ed Meese in the Reagan Justice
Department, addresses the Supreme Court.
President Ronald Reagan was a limited-government conservative who
firmly believed in an originalist interpretation of the Constitution
and in the representative form of government that the Constitution set
up.
Unfortunately, like other Republican Presidents before and after him,
Reagan’s efforts were, for the most part, stymied by the subsequent
behavior of certain of his own appointees. As a consequence, the
Supreme Court remains a threat to the Constitution and representative
government.
Reagan did not fail for lack of trying, however. He did his best to
appoint justices who shared his judicial philosophy. Over two terms,
Reagan filled three vacancies and elevated conservative William
Rehnquist to chief justice. He nominated the great Antonin Scalia to
replace Rehnquist as an associate justice. But two Reagan
appointees—Sandra Day O’Connor and Anthony Kennedy (his third choice
after Robert Bork and Douglas Ginsburg)—would become huge
disappointments.
When Reagan left office, the Supreme Court was still controlled by a majority of activist justices, as it is today.
I believe the Supreme Court is so broken it cannot be fixed simply by
naming seemingly good candidates to the court, then hoping they vote
like originalists during their life-long terms.
Institutional Reform
The Supreme Court needs to be reformed as an institution. It needs
systemic solutions. Two I favor are limiting the terms of justices and
giving Congress the power to veto a Supreme Court decision with a
super-majority vote in both houses. Both reforms would require
constitutional amendments. But it is time for conservative political
leaders to start advocating them aggressively and making the case for
why they are needed to the voters.
Originalists in the Reagan mold believe the federal government
possesses only those powers specifically granted to it by the
Constitution. Under the Constitution, the role of the courts is
strictly limited. Their job is neither to make laws nor amend the
Constitution but to interpret the laws and the Constitution as written,
guided by the plain meaning of the words and the intent of the Framers.
“Judges are not to overturn the will of legislative majorities absent a
violation of a constitutional right, as those rights were understood by
the Framers,” Judge Robert Bork once explained. “[J]udges may look to
the text, structure, and history of the Constitution, but are
prohibited from inventing extra-constitutiona l rights.”
Bork himself paid a high price for fidelity to this principle, and the
Reagan Administration’s experience with his nomination helps illustrate
why reform of the Supreme Court itself is needed.
When Reagan nominated Bork to the Court in 1987, liberal politicians
and their allies in the media and in special-interest groups targeted
him for character assassination. His views were systematically
mischaracterized and maligned.
Even though Bork had been a law professor at Yale and had served with
distinction as a judge on the U.S. Court of Appeals for the District of
Columbia, four members of an American Bar Association review panel had
the audacity to rate him “not qualified” to serve on the Supreme Court.
What they really meant is that they feared Bork’s intellectual power
and commitment to an originalist interpretation of the Constitution.
Left's Desperation
The liberal elite are desperate to keep the Supreme Court on their side
to advance liberal policy priorities that lack the popular support to
win approval from state legislatures or Congress. It was not elected
lawmakers who expelled God from the public square, conferred due
process rights on al Qaeda terrorists and forced states to educate
illegal aliens. It was unelected justices on the Supreme Court. For
decades, this is the way the American left has won its most important
political battles—not at the ballot box, but in court.
Because this is so, the liberal establishment will do whatever it can
to stop the confirmation of originalist justices. If it cannot stop the
confirmation, it will attempt to seduce the justice into its own ranks
once he is sitting on the court. As I wrote in Men in Black, President
Nixon clearly understood this when he was trying to decide whether to
nominate Harry Blackmun to replace Justice Abe Fortas after the Senate
had rejected Nixon’s first two choices for that vacancy.
Blackmun later recalled that Nixon asked him, “What kind of woman is
Mrs. Blackmun?” When Blackmun wondered what this question was getting
at, Nixon said, “She will be wooed by the Georgetown crowd. Can she
withstand that kind of wooing?”
Blackmun contended she could. But, later, when Blackmun was
contemplating whether the Constitution protected a right to privacy
that encompassed a right to abortion, Mrs. Blackmun turned out to be
the best-placed lobbyist for the pro-abortion movement. As Bob Woodward
and Scott Armstrong revealed in The Brethren, the justice’s wife told
one of Blackmun’s pro-abortion clerks: “You and I are working on the
same thing. Me at home and you at work.”
The result was Blackmun’s Roe v. Wade opinion, which took the abortion
issue away from state legislatures, where it had always been, and
elevated abortion to a constitutional right.
After the eventually disappointing nomination of Sandra Day O’Connor to
the first Supreme Court vacancy of the Reagan presidency, the Reagan
Administration developed a very good system for vetting judges. But
even this system did not always succeed.
Potential Reagan nominees were not subjected to a litmus test, but they
were carefully interviewed about their overall judicial philosophy. The
guide for this interview was the Constitution itself. Anthony Kennedy
got through the interview.
On the surface, Kennedy looked good. He was an intelligent man who had
compiled a good record serving in the hostile, liberal environment of
the U.S. Court of Appeals for the 9th Circuit, which is based in San
Francisco. On the West Coast, Kennedy hadn’t drifted noticeably left.
But in Washington, D.C., he did. He wrote the Supreme Court’s 2003
decision in Lawrence v. Texas—holding that same-sex sodomy was a
protected constitutional right. As part of his reasoning, Kennedy
pointed to the European Court of Human Rights view on the subject.
Kennedy’s decision in that case was a classic example of judicial
activism. He started with the result he wanted, and then went looking
for a basis to justify it. In the end, he manufactured one.
Senate Democrats have made it even more difficult to achieve a majority
originalist court with their widespread and unconstitutional use of the
filibuster. Republicans will likely need a 60-vote Senate majority, or
more, which would be a very difficult accomplishment.
While I believe the Supreme Court is long overdue for systemic reform,
the requirement of amending the Constitution to achieve both term
limits and the legislative veto would be a very difficult task. But
unless we begin making the case now, explaining the necessity of the
amendments to the public, we will never solve this threat to the system
and process of government enshrined in the Constitution.
Putting term limits on justices is not a radical idea. It would
actually help restore the balance the Constitution envisioned between
the three branches of the federal government. With term limits, the
Supreme Court would remain an independent body, but they would allow
for the replacement of justices on a timely basis, rather than waiting
for them to die or set their own retirement date. And if justices are
going to use their positions to set policy and, in essence, participate
in the political process without the benefit of standing for election,
there really is no reason for them to serve for life.
Giving Congress a veto over Supreme Court decisions would also help
restore the balance between the court and the legislature. If it took a
two-thirds majority vote in both houses to veto a decision, such vetoes
would not happen often. But it does allow the people, through their
elected branches, to have the last say. For example, I believe the
horrendous Kelo v. New London decision, which said local governments
can seize private homes and turn them over to private developers for
the purpose of raising the tax base, may have garnered the bicameral
two-thirds needed for a veto. Were the court to misuse the 14th
Amendment to create a right to same-sex marriage, as I suspect it
might, that, too, might secure the two-thirds votes necessary for a
congressional veto.
There was no greater advocate of representative, constitutional
government than Ronald Reagan, and no more outspoken opponent of
unbridled judicial activism. If we are to preserve the Constitution as
he and the framers understood it, then the Supreme Court must be
reigned in through these modest reforms that also respect the
independence of the court.
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