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July 19, 2005

Press Contact: Kirston Fortune, UT Law Communications, (512) 471.7330.

The two commentaries by Professors Graglia and Levinson appeared in the Austin American-Statesman on July 10, 2005. A similar version of Professor Graglia's article originally appeared in the Wall Street Journal on May 24, 2005.

Judging the court

With Sandra Day O'Connor's retirement from the Supreme Court, political talk swirls about who might replace her.
As President Bush ponders his choices, two University of Texas law professors look at the court itself and suggest some changes.

Altering 14th Amendment would curb court's activist tendencies

By Lino Graglia

The battles in Congress over the appointment of federal judges reveal a recognition that judges are now, to a large extent, our real lawmakers. Proposals to amend the Constitution to remove lifetime tenure for Supreme Court justices, or to require that rulings of unconstitutionality be by more than a majority (5-4) vote, do not address the source of the problem. The Constitution is very difficult to amend — probably the most difficult of any supposedly democratic government. If opponents of rule by judges secure the political power to obtain an amendment, it should be one that addresses the problem at its source, which is that contemporary constitutional law has very little to do with the Constitution.

Judge-made constitutional law is the product of judicial review — the power of judges to disallow policy choices made by other officials of government, supposedly on the ground that they are prohibited by the Constitution. Thomas Jefferson warned that judges, always eager to expand their own jurisdiction, would "twist and shape" the Constitution "as an artist shapes a ball of wax." This is exactly what has happened.

The Constitution is a very short document, easily printed on a dozen pages. The framers wisely meant to preclude very few policy choices that legislators would have occasion to make.

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment — in fact, on only four words in one sentence of the amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

It does not require jurisprudential sophistication to realize that the justices do not decide controversial issues of social policy by studying those four words. No question of interpretation is involved in any of the court's controversial constitutional rulings, because there is nothing to interpret. The states did not lose the power to regulate abortion in 1973 in Roe v. Wade because Justice Harry Blackmun discovered in the 14th Amendment something no one noticed before.

The problem is that the Supreme Court justices have made the due process and equal protection clauses empty vessels into which they can pour any meaning. This converts the clauses into simple transferences of policymaking power from elected legislators to the justices, authorizing a court majority to remove any policy issue from the ordinary political process and assign it to themselves for decision. This fundamentally changes the system of government created by the Constitution.

The basic principles of the Constitution are representative democracy, federalism and the separation of powers, which places all lawmaking power in an elected legislature with the judiciary merely applying the law to individual cases. Undemocratic and centralized lawmaking by the judiciary is the antithesis of the constitutional system.

Because most of the Supreme Court's activist rulings of unconstitutionality purport to be based on a 14th Amendment that it has deprived of specific meaning, the problem can be very largely solved by simply restoring the 14th Amendment to its original meaning, or by giving it any specific meaning. The 14th Amendment was written after the Civil War to provide a national guarantee of basic civil rights to blacks. If a constitutional amendment could be adopted reconfining the 14th Amendment to that purpose or, better still, expanding it to a general prohibition of all official racial discrimination, the court's freehand remaking of domestic social policy for the nation would largely come to an end. If the justices lost the ability to invalidate state law on the basis of their political preferences, their ability and willingness to invalidate federal law on this basis would likely also diminish.

Plato argued for government by philosopher-kings, but who could argue for a system of government by lawyer-kings? No one can argue openly that leaving the final decision on issues of basic social policy to majority vote of nine lawyers — unelected and life-tenured, making policy decisions for the nation as a whole from Washington, D.C. — is an improvement on the democratic federalist system created by the Constitution. Yet that is the form of government we now have.

Rule by judges is in violation, not enforcement, of the Constitution. Ending it requires nothing more complex than insistence that the court's rulings of unconstitutionality should be based on the Constitution — which assigns "all legislative power" to Congress — in fact as well as name.

Lino Graglia is a law professor at the University of Texas. This article originally appeared in The Wall Street Journal.

Age: the unspoken litmus test for Bush as he replaces O'Connor

By Sanford Levinson

Age is a key variable for members of the Bush administration charged with picking a successor to Sandra Day O'Connor. A recent Washington Post article, for example, indicated that former Solicitor General Theodore Olson "may be too old at 64 because the president will want someone who could be on the bench for 25 years or more, some insiders say." Indeed, most of the persons rumored to be on the president's "short list" are barely 50.

There are many things that could be said about Olson, but that he is "too old" is not one of them, unless, of course, one shares the desire of the Bush administration to lock up the current Supreme Court so that it would be impervious to a course reversal until 2030 (when Clarence Thomas, appointed at age 42, could be well into his fifth decade of service).

Life tenure is a pernicious feature of the modern American judicial system, especially when applied to the Supreme Court. Judges regularly stay on the court well past their prime, often in desperate attempts to survive until a president of their party can make the appointment of their successors.

Moreover, life tenure generates a perverse incentive — that we can see operating in front of our eyes — for presidents to seek young nominees as part of a lock-up strategy that is designed to prevent a switch in voter preference for the White House from actually having an effect on the membership of the Supreme Court.

Two Northwestern University scholars, James Lindgren and Steven Calabresi — a founding father of the Federalist Society, incidentally, so not someone who would be expected to be critical of Republican lock-ups — have shown that from 1790 to 1970 the average length of service of Supreme Court justices was approximately 16 years. Since 1970, however, the average length has gone up almost a decade, to more than 24 years.

William Rehnquist has been on the court for 34 years, 19 of them as chief justice; his immediate predecessors, Warren Burger and Earl Warren, together served only 32 years. Judges should have the self-discipline to know when to retire, but they clearly do not. Another scholar, David Garrow, demonstrated in a University of Chicago Law Review article several years ago that all too many justices have stayed on the court even after they had become seriously debilitated. (The most egregious instance was William O. Douglas, who refused to resign even after a serious stroke; his colleagues secretly voted in effect not to allow Douglas to cast a decisive vote in 5-4 cases.) However much one might admire Rehnquist's personal valor, it is, frankly, a scandal that the seriously ill chief justice refuses to resign. Such long terms are a disservice both to the court and the country.

What would be best is getting rid of life tenure and adopting, say, 18-year non-renewable terms of office, with each president getting two guaranteed appointments per term. This would go a long way to limit the problem of the debilitated judge. Alas, such a sensible proposal is not on the current agenda, in part because even most scholars who oppose life tenure believe — wrongly, I think — that it would take a constitutional amendment to end the practice. (This is Calabresi's and Lindgren's view, which is disputed by, among others, Duke University professor Paul Carrington and Cornell University professor Roger Cramton.)

In the interim, then, Democrats should learn from the White House and make age an issue. They should announce, in advance, that they will be far less inclined to filibuster someone who is Olson's age than someone who is indeed likely to serve a full quarter-century. This has the advantage of being not only good politics, but also good for the country. It is not a question of ideology, but, rather, of preventing partisan lockups.

Democrats — and the country at large — might learn an extremely valuable lesson from the recent papal conclave. Pope John Paul II might have been a great and revered pope. But if there is anything that the election of the 78-year-old Cardinal Joseph Ratzinger made clear, it is that the College of Cardinals wanted to make sure that another such extended reign does not occur again. Seventy-eight may strike one as a bit too old as a desirable age for a new member of the Supreme Court, but surely Theodore Olson's 64 is not. Thus the new rallying cry for the upcoming battle should be: "Don't trust anyone under 64!"

Sanford Levinson, a University of Texas law school professor, celebrated his 64th birthday on June 17. He wrote this for the American-Statesman.

Related Links:
Lino Graglia:
Sanford Levinson:
Opinion in The Wall Street Journal: Lino Graglia's "Our Constitution Faces Death by 'Due Process'":