A presidential candidate spoke yesterday about the federal judiciary:
In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.
In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn’t always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.
So far so good. But then:
There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.
Did we read that right? Did the candidate actually say "common and systematic abuse of our federal courts by the people we entrust with judicial power"?
The candidate continued. The first criticism related to a Supreme Court justice’s concurring opinion, in which he (a Republican appointee) mentioned that "my own experience" supported the view (of a Democratic appointee decades ago) "that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’" Baze v. Rees, No. 07-5439 (U.S. Apr. 16, 2008) (Stevens, J., concurring in judgment).
The candidate said that the justice’s "conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him."
The example suggests, to Blawgletter, the legitimate point that judicial officers ought to interpret the Bill of Rights as a static document, which means the same thing now as it did at ratification in 1789. But to attribute "common and systematic abuse" to the current federal judiciary — in the guise of a concurrence upholding the death penalty — strikes us as more than a stretch.
The second complaint concerns Roper v. Simmons, 543 U.S. 551 (2005), in which the Court held that the eighth amendment prohibition against cruel and unusual punishment bars execution of a 17 year-old murderer. The problem with the majority opinion? It "left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’" And thus "reduce[d] the penalty, disregard[ed] our Constitution, and brush[ed] off the standards of the people themselves and their elected representatives."
The third instance of "common and systematic abuse" arises from Connecticut’s payment to private landowners for taking their property under its condemnation authority. The Supreme Court upheld the state’s right to condemn and take the land upon payment of just compensation in Kelo v. New London, 545 U.S. 469 (2005). The candidate said the Court "gave that property away to a private developer" but didn’t mention that the petitioners got just compensation. The persuasive complaint — that Connecticut’s desire to redevelop New London didn’t amount to a "public use" — gets lost in the candidate’s simplification.
And the final gripe relates to the Ninth Circuit’s 2-1 ruling, in Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002), that requiring public school students to recite "under God" in the Pledge of Allegiance every morning violates students’ first amendment rights. The candidate doesn’t add that the Supreme Court overturned the decision on the ground that Mr. Newdow lacked standing. Thus ended the case.
So we have two death penalty cases, one in which the condemnee lost and the other in which the teenager won life in prison; a "takings" case where the landowners received just compensation; and a Pledge of Allegiance ruling that the Supreme Court tossed on procedural grounds.
"Common and systematic abuse" of "judicial power"? Puh-leeze.