They say ignorance is bliss, but when it comes to the courts and the
Constitution, ignorance is very dangerous. The presidential candidates
debate taxes and Medicare, and Al Gore sighs and lies about his
mother-in-law and his dog and about ‘Love Story’ and Love Canal, but the
real issue in the November election is whether the people or judges will
run the country.
Polls by the National Constitution Center show that more than 40
percent of Americans do not know the number of branches in the federal
government, and 80 percent do not know the number of amendments in the
Constitution. Nearly twice as many teen-agers can name the Three
Stooges as the first three words of the Constitution and just 2 percent
can name the chief justice of the U.S. Supreme Court.
This ignorance is dangerous because the next president will likely
appoint at least one Supreme Court justice. Only four presidents in
American history have not done so, and two of those died after only
months in office. The seven terms with the current Supreme Court lineup
was last exceeded when President James Monroe’s 1823 choice of Justice
Smith Thompson broke an 11-year appointment gap.
The current Court has three blocs of justices, none of them a
majority. The largest group contains four liberal activists, justices
who believe that by morphing the law into what they want it to be they
can re-create society in their own image. In contrast, the three
restrained justices believe the law already means something, and all
they can do is apply it as is. In the middle are two justices who flip
and flop between these two approaches.
Now, I may be a lawyer, but I can at least do simple math. An
activist majority (as in the decision striking down Nebraska’s ban on
partial birth abortion) requires only one of the flippers while a
restrained majority (as in the decision allowing the Boy Scouts to
determine their own message and membership) needs them both. That’s a
pretty slim reed holding up our freedom.
How new justices will affect this equation depends on both retirees
and appointees. Significantly, the three justices most often singled
out for likely retirement include a member of each bloc: activist John
Paul Stevens, a 1975 Ford appointee; flipper Sandra Day O’Connor, a 1981
Reagan appointee; and restrained William Rehnquist, originally a 1972
Nixon appointee. Replacing Stevens, for example, with a justice who
believes the Constitution already means something will make it easier to
create majorities that respect how the people wish to govern
themselves. Replacing Rehnquist with an activist, on the other hand,
will create an absolute majority that easily can impose its own
preferences on the people.
The stakes are enormous because judges are so powerful. Not only do
they have the last word on hot-button issues such as abortion and
religion, but also make decisions that can strengthen or weaken the very
foundation of our freedom. America’s founders designed a political
system that preserves freedom by limiting federal government power.
Last May, in a case titled United States v. Morrison, the Court enforced
those limits by striking down a portion of the Violence Against Women
Act, a law that would have turned local criminal prosecutions into
federal civil lawsuits. The vote was 5-4.
America’s founders designed a system that preserves freedom by
dividing federal power among three branches, leaving the task of making
laws to the legislature. Last March, in a case titled FDA v. Brown &
Williamson Tobacco Corp., the Court enforced this principle by striking
down regulations by an executive branch agency that had not been
authorized by Congress. The vote was 5-4.
In the term now in progress, the Court will again tackle cases
raising these fundamental principles. In a case titled Browner v.
American Trucking Association, for example, the Court will decide
whether Congress can delegate its lawmaking power to executive branch
agencies such as the Environmental Protection Agency. The EPA claimed
its strict new regulations for acceptable levels of ozone and soot were
permitted under the Clean Air Act. A decision that the agency went too
far could scale back the entire federal regulatory system.
In another case titled Solid Waste Agency v. Army Corps of Engineers,
the Court will decide whether the federal government can use its
legitimate authority to regulate “commerce … among the several states”
to control local activities such as dumping solid waste into landfills.
The Army Corps of Engineers says the Clean Water Act allows it to
regulate this dumping activity where it involves areas of water that
might attract migratory birds.
The next president will likely appoint at least one new Supreme Court
justice, and will certainly appoint up to 200 lower court judges. They
have the last word on 99 percent of the cases in the federal system.
These judges will either allow the people to govern themselves and
define the culture or do it for them. Freedom itself hangs in the