[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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