September 23, 2004,
EDITOR'S NOTE:This piece appeared in the July 29, 2002, issue of National Review.
Pity Alfred Goodwin. The judge has been vilified from coast to coast for ruling that it's unconstitutional to force schoolkids to listen to the words "under God" in the Pledge of Allegiance. The words "wacko," "stupid," "ridiculous," and "just nuts" have all been applied, either to the decision or to the judge himself. Except for Judge Stephen Reinhardt, who voted with him, almost nobody seems to be on Goodwin's side. Even the ACLU has been uncharacteristically quiet in its support for him. After a day of criticism, Goodwin felt moved to stay the implementation of his own decision as a matter of (in his words) "damage control."
Goodwin and Reinhardt deserve better. In the context of the church-state case law that the Supreme Court has built up over the last 55 years, their ruling was, at the very least, defensible. The Court has frequently held that there is a constitutional obligation for governments state governments and the federal government alike to avoid the appearance of endorsing religious views. It has ruled that public schools, in particular, must avoid actions that may generate social pressure for children to express support for such views. It's hard to reconcile the common public-school practice of reciting the Pledge with the Court's rulings.
What Goodwin and Reinhardt did was take orthodox liberal church-state jurisprudence to its logical conclusions. Only political prudence, or residual common sense, has kept their fellow judges from doing the same.
The decision can, of course, be faulted for exhibiting a certain judicial arrogance. The judges forbade a widespread, long-accepted practice, implying that the Supreme Court, state legislatures, and schools had all been constitutionally derelict and oppressive in letting the Pledge be recited all these years. But here again, Judge Goodwin's ruling is not so much more egregious than other judicial edicts. A week before it, the Supreme Court had ruled that it is unconstitutional for states to impose the death penalty on mentally retarded convicts. It thus overruled the judgment of 20 states, with no greater constitutional justification than that "evolving standards of decency" had left those states behind. Unlike the Pledge decision, moreover, the death-penalty decision will have negative real-world consequences, as Death Row convicts start gaming the intelligence tests.
In both of these cases and many others, the worst damage done by the courts is to the constitutional structure: to self-government, federalism, and the rule of law. In such cases, the federal judiciary steps beyond its constitutional powers at the expense of local elected officials. But judicial self-aggrandizement as such does not seem to outrage the public. People grow angry only when judicial power is used for ends to which they object emotionally like the removal of "God" from the Pledge.
It would be nice if the American people were more jealous of their constitutional prerogatives as a matter of principle. As things stand, it is incumbent on political leaders who are concerned about constitutional ideals to use moments of public agitation to restore those prerogatives.
Political leaders failed in this task the last time the courts presented them with an opportunity. In 1989, the Supreme Court ruled Texas's ban on flag-burning unconstitutional. The immediate issue, as in today's Pledge case, was less than earth-shattering. Also as in the present case, there was nonetheless an eruption of popular anger at the decision, and politicians reflected this mood in denouncing it. There were other parallels as well. Although states had long protected the flag without the raising of a constitutional question just as schools for decades had asked children to recite the words "under God" in the Pledge - - the ruling that doing so was unconstitutional was plausibly based on precedents that had drawn little notice from the public. (Those precedents classed various forms of expression, such as nude dancing, as "speech" deserving a certain level of constitutional protection. And whereas the First Amendment stipulates that "Congress" shall make no law abridging freedom of speech, the Court had extended the protection of free speech to apply against the states as well.)
Congress's response to the controversy was to pass a federal version of the Texas statute. The Court promptly, and predictably, struck the federal law down. Then congressmen started pushing for a constitutional amendment to ban flag burning. This effort served narrow political purposes, since it forced liberal congressmen to vote to allow flag-burning. But its chances of actual success in undoing the Court's ruling were always slim: The Constitution, quite properly, makes itself difficult to amend by elected officials. To many people, it also seemed a bit grotesque to amend the Constitution to deal with an issue that was, in itself, so picayune. One wouldn't want to clutter the Constitution with clarifications every time the courts misread it.
The congressional response to Judge Goodwin's ruling has been even more pathetic than the response to the flag-burning decision. Politicians have been content to take to the floor of Congress to recite the Pledge and denounce the ruling and to vote for a resolution declaring themselves pro-Pledge. There has been enough mindless posturing to make anyone wonder, for a moment, whether judicial rule is all that much worse than representative democracy.
But perhaps the congressmen should not be judged too harshly. Most of them are unaware of any more constructive action they can take in the face of unconstitutional judicial actions. Our political culture contemplates two methods of correcting errant courts: amending the Constitution to override them, and appointing successor judges who will rule differently.
The amendment strategy, as mentioned, is very hard to pull off. (Even at that, it's under ideological challenge from prominent academics who regard corrective amendments as, in the words of Stanford Law School dean Kathleen Sullivan, "mutiny against the authority" of the courts.) The appointments strategy is hardly easier. Presidents Reagan and Bush I tried to improve the composition of the federal judiciary, but their success might be described, with charity, as mixed and they were able to make five Supreme Court appointments. A set of coconventions has also arisen around the judicial-selection process that inhibits presidents and senators from discovering either the scope of a nominee's view of his prospective constitutional powers or the uses to which he would likely put those powers.
Occasionally, someone will suggest that judges who regularly exceed their constitutional mandates should be impeached. Tom DeLay said this a few years ago, and was treated as a dangerous madman as a result. He shouldn't have been. In Federalist Number 81, Alexander Hamilton prescribes exactly that remedy for judicial usurpation. But modern legal scholars generally glance past those words in embarrassment. (Chief Justice William Rehnquist, acting in his sometime role as the head of the judges' union, has made a singularly unconvincing case that Hamilton's views have been made obsolete.) Should constitutionalists devote their energies to making the case that impeachment is not an extreme remedy for usurper-judges? Probably not. Any such educational campaign might end up teaching the wrong lesson that the problem with the judiciary is a few bad apples, not a structural imbalance of power.
Judicial errors are so hard to correct and the potential remedies are now so weakened because we have come to hold an inflated view of judicial authority. We think it natural that judges should have the last word on constitutional matters. We habitually treat the Constitution as though it were whatever the Supreme Court says it is. We assume that the Court has the job of determining the limits of everyone else's powers, which means, of course, that it has more power than everyone else. Such power, effectively unchecked, is bound to be abused.
There is, however, a way to start changing these assumptions. The Constitution grants Congress the power to limit the jurisdiction of the federal courts. Article III, Section 2, explicitly gives Congress the power to limit the appellate jurisdiction of the Supreme Court ("the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make"). The power of Congress to limit the jurisdiction of the lower federal courts is implied. Article III, Section 1, grants Congress the power to create the "inferior Courts," which has to include the power to establish the scope and limits of their jurisdiction. (The Constitution spells out Congress's ability to limit the jurisdiction of the Supreme Court because the Constitution, rather than Congress, establishes that court.)
A simple majority of Congress and a presidential signature can regulate, or establish exceptions to, the jurisdiction of the federal courts. A constitutional amendment is not required. Such a bill would reduce the power of the judiciary rather than merely recall a few judges (as impeachment would) or make an impotent gesture of defiance to the courts (as the congressional flag-burning statute did). In addition, the effort to pass a bill would be educational even if it failed to pass, since it would challenge prevailing misconceptions about the proper division of interpretive power over the Constitution.
So, for instance, Congress could pass a bill making it impossible for the lower federal courts to take up challenges to the constitutionality of schools' use of the Pledge of Allegiance a bill that Republican congressman Todd Akin of Missouri has introduced. Judge Goodwin's decision would be effectively nullified, since neither he nor other federal judges would be able to enforce it.
If the bill starts to gain steam, there will be no shortage of criticisms of it. (Anthony Lewis may come out of retirement to denounce it.) People will call it an overreaction to one bad decision that the courts are already correcting. They will say that it is not the place of Congress to do the correcting, that it is the job of the courts alone to interpret the Constitution.
Some conservatives will be among the critics. Many of them accept judicial supremacy, criticizing how the Supreme Court rules us rather than the fact that it rules us. In some cases, they want to use judicial power for conservative ends. They may not be familiar with the constitutional basis for regulating the jurisdiction of the federal courts.
Even conservatives who are familiar with it sometimes raise the objection that reining in the federal courts would only empower the state courts, which are in many cases even worse. Pass Akin's bill, for example, and a California court could issue an anti-Pledge ruling. The objection is not persuasive. When state courts overstep their mandates, opponents in the state have political recourses available to them. In many states, they can vote out the offending judges at re-election. They can impeach the judges; they can amend state statutes and constitutions. It may be difficult to accomplish these things, of course, but they are not even theoretical possibilities when a federal court moves against a state. A state is practically powerless in such situations.
In the normal course of things, it's not the federal government's concern when a state court runs amok. When a federal court wrongly diminishes state autonomy, however, a branch of the federal government is acting as a rogue agent and should be restrained by the other branches. It is worth noting that the state courts are as riotous as they are because the legal culture has been influenced by decades of federal-court usurpations unchecked by any effective political response. Perhaps the Akin bill or something like it would inspire similar efforts at the state level.
Another argument against limiting the jurisdiction of the federal courts merits serious consideration. It is that it would set a dangerous precedent. Congress would soon start passing bills to undo sound judicial decisions merely because they are unpopular with the public or with congressmen. Of course, any power can be abused. But the present system in which it is easy for federal judges to amend the Constitution by fiat, but difficult for their amendments to be undone is far more open to abuse than one that checks the judges would be.
Hamilton famously remarked that the judiciary is "the least dangerous" branch of the federal government because it has "no influence over either the sword or the purse." These words are often cited ruefully by conservatives, who think that Hamilton underestimated the dangers the federal judiciary could pose. But those words point to an enduring truth about judicial overreach: Its continuation depends on the acquiescence of the other branches.
Under our Constitution, self-government is not merely an option; it is an obligation. Passive acquiescence in judicial rule a failure to resist it does not legitimize it. The Congress is full of politicians who have been reciting the Pledge of Allegiance. But they take an oath to defend the Constitution, too. If they look, they will find in it the means for its reclamation.