By James Copland Washington Examiner, 06-30-10
Perhaps signaling that the conservative critique of judicial activism has won over American voters, Supreme Court nominee Elena Kagan opened her confirmation hearings Monday by articulating a "modest" vision of judging: being "properly deferential" to elected representatives. But what exactly does she mean? It's of course true by definition that courts should defer to legislatures when the legislatures behave "properly"--but disputes over jurisprudence center precisely over disagreement about what's proper and what's improper.
For instance, should the courts defer to the elected branches when they violate explicit constitutional commands and try to seize our guns or homes? I'd say not, but the same left-leaning justices prone to finding new "unenumerated rights" in our Constitution seem to think differently. In this week's McDonald v. Chicago and in 2008's Heller v. District of Columbia, these judges essentially read the Second Amendment right to bear arms out of the Constitution, much as they did with the Fifth Amendment's Takings Clause in 2005's Kelo v. New London.
Similarly, why should the Supreme Court defer to elected representatives when they set out to ban political speech in clear violation of the First Amendment? President Obama disingenuously demagogued the Court's recent Citizens United campaign-finance ruling in his State of the Union address earlier this year, but let's be clear what that case was about: the federal government was trying to prevent a nonprofit group from distributing a video critical of then-presidential candidate Hillary Clinton. The Solicitor General's office headed by Kagan actually suggested that the government could ban books (though it later backed off that claim).
When elected leaders are trying to tinker with the rules governing their own reelections, courts should be skeptical, not deferential. As the Supreme Court invalidated campaign-finance rules in its 1976 decision Buckley v. Valeo, it took notice that Congress had set election-spending limits below the threshold level of any successful challenge to an incumbent in the preceding election. And let's not forget that political leaders can attempt to game such rules for partisan advantage, too. Kagan herself understood as much, when in the Clinton White House she noted with enthusiasm that a provision of the campaign-finance bill that became McCain-Feingold "affects Repubs, not Dems!"
Saying that the courts should defer to Congress also presupposes that Congress is clear about what it wants. Many times, it isn't. Congressmen and Senators regularly pass vague or ambiguous laws and force the other branches of government to determine what these laws actually mean.
Loose congressional drafting leads to broad regulatory schemes that may (or may not) preempt state rules and tort litigation. By failing to clarify their intent, congressional leaders can avoid upsetting business leaders and doctors on the one hand, and trial lawyers on the other.
In a criminal context, congressional vagueness allows politicians to "get tough on crime" without really saying what's criminal. Discretion shifts to prosecutors, and the rest of us are left unable to ascertain the boundaries of laws that might put us in jail. To save innocent citizens from being imprisoned, courts are forced to toss out Congress's laws in their entirety or to try to rewrite the laws to make them clearer--as the majority of the Supreme Court did last week with a ridiculous federal law that had made it a crime "to deprive another of the intangible right of honest services".
The left, including many of the Democratic Senators on the Judiciary Committee, has made a concerted effort to define "judicial activism" as "overturning Congress." But Congress should be overturned when it crosses its clear constitutional boundaries: that's why we have judicial review. And when Congress is unclear about its intentions, it makes no sense to say courts should defer to its wishes.
Elena Kagan's self-professed judicial "modesty" thus does little to inform us about how she would judge. Because her sparse record gives so few additional clues, Congress should hold her to the standard she once articulated as a law professor and engage her substantively on legal issues before confirming her to a lifetime seat on the nation's highest court.