Into the Thicket
From habeas corpus to the Second Amendment, an activist Supreme Court just helped secure our rights
In a celebrated 1958 lecture delivered at Harvard University, federal appeals court judge and noted legal scholar Learned Hand famously likened the United States Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the separation of powers and compromise the very idea of democratic rule. "When I go to the polls," Hand observed, "I have a satisfaction in the sense that we are all engaged in a common venture." Were the Supreme Court to have the final say on every political question, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."
Fast-forward half a century to the recent conclusion of the Court's 2007-2008 term, and you'll find Hand's complaint is still alive and well on both sides of the aisle. For instance, former Republican Rep. Tom DeLay (R-Texas) responded to Boumediene v. Bush, which recognized habeas corpus rights for prisoners held as enemy combatants at Guantanamo Bay, by arguing that the Court "has declared itself the final authority on making war, incarcerating enemy combatants, and, indeed, on the American people's right to self-government." In short, "this is not judicial activism. It is judicial tyranny."
Though he employed a necessarily lighter touch, Chief Justice John Roberts took much the same line, criticizing the Boumediene majority in his dissent for needlessly and arrogantly substituting its "unelected, politically unaccountable" views for those of "the people's representatives." According to Roberts, "one cannot help but think…that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."
On the other side of the ideological divide, Justice John Paul Stevens was busy chastising the Court's conservatives for entering the "political thicket" of gun control in District of Columbia v. Heller, where the majority struck down Washington, D.C.'s sweeping handgun ban and held that the Second Amendment protects an individual right to keep and bear arms, a decision that Stevens found deeply troubling. "No one has suggested that the political process is not working exactly as it should," he wrote, employing language long associated with the case against judicial activism. "It is, however, clear to me, that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."
As it happens, Roberts and Stevens each have a valid point. In both the habeas corpus and Second Amendment decisions, the Supreme Court did nullify popularly enacted legislation, overruling the expressly stated preferences of lawful representatives and other public officials. And it's a good thing that the Court did. With the Bush administration asserting the "inherent" authority to wage war and detain certain prisoners indefinitely without trial, and with Congress apparently more than willing to cede these and other war powers to the executive branch, it was the Court's basic constitutional duty to act as a check against such abuse.
By the same token, with Washington, D.C.'s notoriously inept local government perfectly willing to leave law-abiding residents unarmed and thus unable to defend their own homes, the job of restoring the Second Amendment's lost liberties necessarily fell to the judiciary. In both cases, the Court simply undertook what James Madison had in mind when he described the judicial branch as "an impenetrable bulwark against every assumption of power in the legislative or executive." Judges, in other words, are supposed to strike down unconstitutional laws and to discipline overreaching officials. That's true whether such laws are popular with a majority of people or not. And dangerous laws only get worse when they're embraced by the population.
If anything, the courts today should be striking down far more laws than they do. Indeed, if there is one common thread to the Supreme Court's history, it's the fact that its worst decisions have centered on deference to government action, not on hostility to the will of the majority. For instance, there was Plessy v. Ferguson (1896), where the Court upheld Louisiana's Jim Crow railroad regulations; Korematsu v. United States (1944), where the Court upheld Franklin Roosevelt's wartime internment of Japanese Americans; and Kelo v. City of New London (2005), where the majority upheld that Connecticut municipality's abuse of its eminent domain powers. A little judicial activism in such cases would have gone a long way towards protecting individual liberty.
Which brings us back to the present. One of the most important things to take away from the Court's most recent term, evident in decisions ranging from Boumediene and Heller to Davis v. Federal Communications Commission, where the majority struck down parts of the Bipartisan Campaign Reform Act for restricting political speech, is that the vigorous use of judicial review isn't just legitimate, it's necessary to help safeguard our rights.
Damon W. Root is an associate editor of reason.