[Congressional Record Volume 143, Number 100 (Tuesday, July 15, 1997)]
[House]
[Pages H5185-H5186]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               UNJUSTIFIED CRITICISM OF JUDICIAL ACTIVISM

  Mr. FRANK of Massachusetts. Mr. Speaker, we have recently heard a lot 
of criticism of judicial activism. People, especially on the 
conservative side of our spectrum, have denounced justices, Supreme 
Court Justices and judges, who, with their life-tenured appointments, 
have stricken laws passed by the elected officials, and there has been 
a great deal of criticism that this is essentially undemocratic.
  I disagree with the criticism. I think the role of the judiciary in 
defending our rights, particularly when legislative majorities err and 
disregard those rights, is a very important one. I am, therefore, 
pleased to note that there are high-ranking judicial officials who are 
not deterred. I am here to congratulate in particular two Justices who 
have repudiated implicitly this criticism of judicial activism. I am 
here to call attention to the work of two Justices who have 
consistently upheld the finest traditions of judicial activism by 
striking laws, by overruling administrative decisions, even on occasion 
being in the minority and

[[Page H5186]]

trying to strike laws. Now, they have been criticized.
  For instance, in a recent decision, one of the dissenting Justices 
who sought to uphold an act of Congress said, what basis is there in 
any of those sources, talking about the majority's history, for 
concluding that it is the members of this Court, rather than the 
elected representatives of the people, who should determine whether the 
Constitution contains the unwritten rule that the Court announces 
today.
  In other words, the dissenter says to this majority, what gives you 
the right in this ambiguous area, because nothing is explicit, to 
overrule what the elected officials have said? That same dissenting 
Justice said in a footnote, referring to what he thought was shoddy 
history and poor logic on the part of the majority, he said, ``If this 
sort of unexplained congressional action provides sufficient historical 
evidence to support the fashioning of judge-made rules of 
constitutional law, the doctrine of judicial restraint has a brief, 
though probably colorful, life expectancy.'' Here again, the dissenting 
Justice says to those in the majority, you are making a mockery of 
judicial restraint.
  Well, in this particular case I agreed with the dissenting Justice on 
the substance, I am talking about Justice Stevens, he wrote the 
dissent, and he was dissenting in the Brady bill case. Justice Stevens 
wanted to uphold the Brady bill. He wanted to uphold the mandate that 
we ask local officials to cooperate in a very small way, but he was 
overruled. And while I disagree with the majority here, I want to pay 
tribute to Justices Scalia and Thomas for not being in any way deterred 
by criticism of judicial activism. Indeed, in the past term of the 
Supreme Court, Justices Scalia and Thomas voted to invalidate more acts 
of Congress than all but one of the Justices. Justice Kennedy I think 
tied them.
  For instance, Justices Scalia and Thomas said, when this Congress 
passed the Communications Decency Act in an effort to keep indecent 
material off the Internet, which did seem to me to violate the 
Constitution. I voted against it. I was one of a small number of 
Members who voted against it. Over 400 Members of this House voted for 
that bill. But were Justices Thomas and Scalia deterred from declaring 
it unconstitutional? No, they were not. Four hundred Members may have 
said we want to keep indecent material off the Internet. I think they 
misread the Constitution, and Justices Scalia and Thomas joined in the 
opinion that invalidated that.
  When an overwhelming majority of this Congress passed the Religious 
Freedom Restoration Act to protect people's religious practices from 
laws that might unfairly impinge on them, there I was in the majority. 
I thought the Constitution allowed us to do it. Justices Thomas and 
Scalia disagreed.
  Now, I disagree with their disagreement. I think they were wrong on 
the substance, but I do have to pay tribute to the fact that they said 
an overwhelming majority of people in Congress think it is protecting 
people's religions, but when two of the Supreme Court Justices disagree 
and we will strike that law down and strike it down they did. I 
disagreed with them also, as I said, on the Brady bill. That was passed 
by a narrower majority. Very ambiguous language. They were in the 
majority to strike it down.
  When the Securities and Exchange Commission, a Federal agency due 
certain amount of deference from the courts in statutory 
interpretation, tried to uphold the current practice regarding insider 
trading, a man who had benefited from insider trading, illegitimately 
in my opinion, brought a lawsuit and the Court 6 to 3 upheld the 
Securities and Exchange Commission. But among the three who said no, we 
the Justices will overrule this Federal agency, we will not show them 
that deference, were Justices Scalia and Thomas.
  When Congress passed the must-carry rule as part of the 
Telecommunications Act, when we mandated that TV stations and cable 
companies carry broadcast stations, Congress upheld that. So the Court 
upheld that by 5 to 4. In the minority were Scalia and Thomas.
  So I simply want to call note to the fact that these two justices 
have repudiated critics of Judicial activism and have been as active in 
this past term as any Justices in our past history.
  Mr. Speaker, I include for the Record examples of judicial activism 
on the part of Justices Scalia and Thomas.

Examples of Judicial Activism on the Part of Justices Scalia and Thomas

       1. They both voted to declare unconstitutional part of the 
     Brady bill regulating the sale of handguns.
       2. They both voted to declare unconstitutional the 
     Religious Freedom Restoration Act, which sought to protect 
     the rights of religious people where laws were passed that 
     impinged on their religious practice.
       3. They both joined in the decision holding the 
     Communications Decency Act unconstitutional. The CDA sought 
     to ban indecent material from being sent on the Internet.
       4. They both voted to declare unconstitutional the federal 
     law requiring cable TV systems to carry the signals broadcast 
     by local over the air stations. The law was upheld, however, 
     because they were part of a four member minority.
       5. They were again in the minority in seeking to overrule 
     the decision of the Securities and Exchange Commission as to 
     who is covered by the statute prohibiting insider trading. 
     The SEC has taken a broad view of the coverage of this 
     statute, and Justices Thomas and Scalia were in a 6 to 3 
     minority in seeking to overrule the SEC.
       6. Justices Scalia and Thomas continue to join three others 
     to form a majority holding that the Voting Rights Act has 
     severe constitutional defects and have continued to strike 
     down voting districts created under the Voting Rights Act--at 
     the time often at the urging of the Bush led Justice 
     Department as well as groups representing African Americans.

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