[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Senate]
[Pages S7758-S7762]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONGRESS AND THE FEDERAL JUDICIARY
Mr. LEAHY. Mr. President, I want to turn now to another issue. This
time last year, I rose to express concern about the final decisions of
the Supreme Court's 1998 Term, in which it struck down on federalism
grounds three important pieces of bipartisan legislation. Another
Supreme Court Term has now ended, and this Term's victims include the
Violence Against Women Act and, as applied to State employees, the Age
Discrimination in Employment Act.
I see my distinguished friend from Delaware in the Chamber, and I
know he has spoken extensively on this. I believe it bears repeating.
We have seen a growing trend of judicial second-guessing of
congressional policy decisions, both in the Supreme Court and in some
of the lower Federal courts. Most troubling to me is the encroachment
of the Federal judiciary on the legitimate functions of the Federal
legislative branch in matters that are perceived by the courts to
impact the States.
We ought to all be concerned about this because it affects our
constitutional system of checks and balances. We ought to ask ourselves
how we can have a situation where an unelected group of Supreme Court
Justices can over and over substitute their judgment for the judgment
of the elected representatives of this country.
It is not a question of how we feel about an individual case.
Sometimes I vote for these bills and sometimes I vote against them. But
when we have held hearings, when we have determined that there is a
need for Federal legislation, when we have gone forward, and then in an
almost cavalier and, in some cases, disdainful fashion, the Supreme
Court knocks it all down, something is wrong. It is time for us to join
together in taking stock of the relationship between Congress and the
courts.
According to a recent article by Stuart Taylor, the Rehnquist Court
has struck down about two dozen congressional enactments in the last
five terms. That is about five per year--a stunning pace. To put that
in perspective, consider that the Supreme Court struck down a total of
128 Federal statutes during its first 200 years. That is less than one
per year, and it includes the years of the so-called ``activist''
Warren Court.
Justice Scalia recently admitted that the Rehnquist Court is
``striking down as many Federal statutes from year to year as the
Warren Court at its peak.'' In fact, the Rehnquist Court, with its
seven Republican-appointed Justices, is striking down Federal statutes
almost as fast as this Republican Congress can enact them. These cases
evidence a breakdown of respect between the judiciary and legislative
branches, and raise serious concerns about whether the Court has
embarked on a program of judicial activism under the rubric of
protecting State sovereignty.
Let me start where I left off a year ago, with the trio of 5-4
decisions that ended the Court's last Term. In the Florida Prepaid
case, the Court held that the States could no longer be held liable for
infringing a Federal patent. In the College Savings Bank case, the
Court held that the States could no longer be held liable for violating
the Federal law against false advertising. And in Alden v. Maine, the
Court held that the States could no longer be held liable for violating
the Federally-protected right of their employees to get paid for
overtime work.
These decisions were sweeping in their breadth. They allowed special
immunities not just to essential organs of State government, but also
to a wide-range of State-funded or State-controlled entities and
commercial ventures. They tilted the playing field by leaving
institutions like the University of California entitled to benefit from
Federal intellectual property laws, but immune from enforcement if they
violate those same laws. They were also startling in their reasoning,
casting aside the text of the Constitution, inferring broad immunities
from abstract generalizations about federalism, and second-guessing
Congress' reasoned judgment about the need for national remedial
legislation.
When I discussed these decisions last year, I warned that they could
endanger a wide range of other Federally-protected rights, including
rights to a minimum wage, rights against certain
[[Page S7759]]
forms of discrimination, and whatever rights we might one day provide
to health coverage. This year's crop of 5-to-4 decisions continued the
trend toward restricting individual rights and diminishing the
authority of Congress to act on behalf of all Americans in favor of
protecting State prerogatives.
The predictions I made last year have unfortunately come to pass with
this year's Supreme Court decisions. In Kimel v. Florida Board of
Regents, the Court held that State employees are not protected by the
Federal law banning age discrimination, notwithstanding Congress'
clearly expressed intent. Five members of the Court decided that age
discrimination protections applied to the States were unnecessary. The
Congress and the American people had it wrong when we concluded that
age discrimination by State employers was a problem that needed a
solution. None of those five Justices sat in on the hearings that
Congress held 30 years ago, they did not hear the victims of age
discrimination describe their experiences, but they nonetheless decided
they knew better than Congress did. Justice Thomas wrote separately to
say that he was prepared to go even further and make it even harder for
Congress to apply anti-discrimination laws to the States.
The Kimel decision could spell trouble for all sorts of Federal laws,
including other laws prohibiting discrimination in the workplace and
regulating wages and hours and health and safety standards. The Supreme
Court majority has now told us, after the fact, that we in Congress
have to ``build a record,'' like an administrative agency, before they
will allow us to protect State employees from discrimination, but it
has not made it entirely clear just how many victims of discrimination
have to come before us and testify before it will allow us to give them
legislative protection.
The signs, however, are ominous: the week after it decided Kimel, the
Court vacated two lower court decisions holding that States must abide
by the Equal Pay Act, calling into question the ability of Congress to
offer State employees protection from sex discrimination. Next Term, in
University of Alabama v. Garrett, the Court will decide whether States
can be held liable for discriminating against employees with
disabilities. That plaintiff in Garrett is a State employee--a nurse at
the University of Alabama--who was diagnosed with breast cancer, and
was demoted after taking sick leave to undergo surgery and
chemotherapy.
The second blow this Term to congressional authority was United
States v. Morrison, which struck down a portion of the Violence Against
Women Act that provides a Federal remedy for victims of sexual assault
and violence. The Violence Against Women Act had been our measured
response to the horrifying effects of violence on women's lives
nationwide, not only on their physical well-being but also on their
ability to carry on their lives and their jobs as they are driven into
hiding by stalking and prevented from going out at night in some areas
by fear of rape. After hearing a mountain of evidence detailing the
impact of violence on women's lives and interstate commerce, I was
proud to work with Senator Biden, Senator Hatch, Senator Kennedy and
others in an overwhelming bipartisan consensus in 1994 to enact VAWA.
But the five-Justice majority was unimpressed with the evidence, and
with the common-sense point that violence affects women's lives,
including their participation in commerce. Relying once again on
abstract notions of federalism, the Court decided that violence against
women does not affect interstate commerce enough, or rather, it affects
interstate commerce, but in the wrong sort of way, so Congress has no
business protecting American women from violence. One Justice said he
would cut even more into Congress' power, saying we had very little
business doing much of what we had done throughout the 20th century.
Frankly, I do not want to see us turn back, in the 21st century, to a
19th century view.
What made this latest ``federalism'' decision all the more remarkable
is that the vast majority of the States, whose rights the Court's
``federalism'' decision are supposed to protect, had urged the Court to
uphold the VAWA Federal remedy.
The Kimel and Morrison decisions are troubling, both for what they do
to the rights of ordinary Americans, and for what they say about the
relationship between Congress and the present majority of the Supreme
Court. State's rights and individual rights are both essential to our
constitutional scheme, and the Court has a constitutional duty to
prevent the Congress from encroaching on them. I have spoken before
about the need to restrain the congressional impulse to federalize more
local crimes. There are significant policy downsides to such
federalization, however, that do not apply in other areas, where each
American, no matter what State he or she lives in, should have the same
rights and protections.
The legislative judgments we make that are reflected in the laws we
pass deserve more respect than the Rehnquist Court has shown. It is
troubling when five unelected Justices repeatedly second-guess our
collective judgments as to whether discrimination and violence against
women and other major social problems are serious enough, or affect
commerce in the right sort of way, to merit a legislative response.
It is even more troubling when a Justice steps out of his judicial
role, and beyond the judgment calls inherent in individual cases, to
express a generalized disdain for the legislative branch. Yet, that is
precisely what Justice Scalia did in a recent speech, in which he
suggested that the oath to uphold the Constitution that each of us
takes counts for nothing, and that Acts of Congress should be stripped
of their traditional presumption of constitutionality. Justice Scalia
is as free as the next citizen to express his mind, but that sort of
open disrespect for Congress coming from a sitting Supreme Court
Justice bodes ill for democracy, and for the delicate balance of power
between the Congress, the President and the courts on which our
Constitution rests.
I am also fearful that Justice Scalia's remarks are becoming a
rallying cry for Federal judges around the country who are hostile to
Congress and to some of our efforts to protect ordinary people from
discrimination, from violence, from invasions of privacy and violations
of civil liberties, and from environmental and other health hazards.
The Federal appeals court in Richmond, Virginia--the Fourth Circuit--
has the dubious honor of leading this charge with radical new legal
theories that cut back on Federal power and individual rights.
In January, the Supreme Court unanimously reversed a Fourth Circuit
decision invalidating a Federal law that prohibits States from
disclosing personal information from motor vehicle records. The Fourth
Circuit had held that this common-sense privacy law violated abstract
notions of federalism. As we have seen, it takes a lot to outdo the
present Supreme Court in raising abstract federalism principles over
individual rights.
Also in January, the Supreme Court overwhelmingly rejected the Fourth
Circuit's reasoning in a case involving citizen ``standing'' in Federal
court to sue polluters who violate our environmental laws. The Fourth
Circuit decision had sharply limited the ability of citizens to sue
polluters and win civil penalties. The Supreme Court reversed that
decision by a 7-2 vote, with Justice Scalia and Justice Thomas
dissenting.
The Fourth Circuit is even more consistently hostile to civil rights
in matters of criminal law and civil liberties. In death penalty cases,
for example, it seems to have embraced a doctrine of State
infallibility. An article in the American Lawyer last month reported
that:
While condemned inmates' rates of at least partial success
in Federal habeas corpus actions run at close to 40 percent
nationally, the rate in the 4th Circuit since October 1995
has been a cool 0 percent, with more than 80 consecutive
convictions having been upheld.
In May, a unanimous Supreme Court, a Court that itself espouses the
general belief that the rights of capital defendants are best protected
by the State justice system that seeks to execute them, overturned two
Fourth Circuit decisions that denied habeas corpus relief to death row
inmates who had been sentenced to death on the basis of grossly unfair
procedures.
Just last month, the Fourth Circuit lost its bid to overturn the
Supreme
[[Page S7760]]
Court's landmark decision in Miranda v. Arizona. The Fourth Circuit's
notion that it had the right to overturn a longstanding Supreme Court
precedent was unorthodox, to say the least. By a 7-2 vote, in which
Justices Scalia and Thomas dissented again, the Court reaffirmed the
34-year-old precedent that requires the police to inform suspects of
their right to remain silent.
What we are seeing in the Fourth Circuit is unparalleled, but not
unrivaled. Other Federal courts across the country are also embracing
Justice Scalia's ``no-deference'' philosophy and busily redefining the
relationship of the judiciary to the other branches of government. The
D.C. Circuit departed from a half century of Supreme Court separation-
of-powers jurisprudence to strike down air quality standards
established by the EPA under the Clean Air Act, a crucial statute
passed during the Nixon administration that has improved the air we
breath for the last three decades. Meanwhile, in a striking throw-back
to the Lochner era of economic libertarian ``natural law'' theory, the
Federal Circuit has adopted an unusually expansive reading of the
Takings Clause that threatens to undermine basic environmental
protections that Congress has established. Likewise, Federal district
courts in Texas have recently rendered radical decisions, limiting the
Federal Government's authority to enforce basic food safety standards.
Republican detractors of the Ninth Circuit often refer to that
court's high reversal rate in the Supreme Court. But about half of the
Ninth Circuit decisions that the Supreme Court reversed this year were
written by Reagan and Bush appointees. Moreover, set against the
reversal record of other circuits, the Ninth Circuit, which has the
largest caseload of all the Federal appeals courts, looks about
average. Courts with half or a third of the caseload of the Ninth
Circuit have more than their share of reversals. The Fourth Circuit was
reversed five times this year, as was the Fifth Circuit. The
overwhelmingly Republican-appointed judges of the Seventh Circuit were
reversed in five out of seven cases this year.
I have spoken at some length about this growing trend of judicial
decisions second-guessing the congressional judgments embodied in laws
that apply to the States because I am deeply concerned about what they
mean for the relationship between the judicial and the legislative
branches and for our democracy. When a Supreme Court Justice, one held
up by some of my Republican friends as a paragon of judicial restraint,
declares that no deference, no respect, is owed to the democratic
decisions of Congress, Americans should be concerned.
We here in the Senate have a responsibility to safeguard democratic
values. That does not mean that we should be strident, or
disrespectful; we should always cherish judicial independence even when
we dislike the results. We should, however, defend vigorously our
democratic role as the peoples' elected representatives. When we see
bipartisan policies, supported by a vast majority of the American
people, being overturned time and time again on the basis of abstract
notions of federalism, it is our right, and our duty, to voice our
concerns. And when the rights of ordinary Americans are defeated by
technicalities in the courts and by abstract notions of ``State's
rights'' that the States themselves do not support, it is our
responsibility to work together to find new ways to protect them.
I have tried to do that. A year ago, I voiced my concerns about the
Supreme Court's 1999 State sovereign immunity decisions, as did some of
my colleagues, including Senator Biden and Senator Specter. I warned
then of their potential impacts on the civil rights of American
workers. As we have seen, my fears became a disturbing reality in the
Kimel case. I have also tried to begin work on restoring the integrity
of our national intellectual property system, in the Intellectual
Property Protection Restoration Act, S. 1835, a bill I introduced last
October. That bill would restore intellectual property protections
while meeting all the Court's constitutional objections, however
questionable they are. I am delighted that a subcommittee of the House
Judiciary Committee held a hearing today to explore ways to undo the
damage done to our intellectual property system by the Court's 1999
decisions. I hope that the Senate Judiciary Committee will consider and
act on this important issue, which it has ignored all year.
These are issues we should all be working on together. Republicans
and Democrats can agree on the importance of protecting civil rights,
intellectual property rights, privacy and other rights of ordinary
Americans that recent doctrinaire judicial decisions have impaired. We
can also agree on the importance of protecting Congress as an
institution from repeated judicial second-guessing of policy judgments
on matters that affect the States.
It is important for Congress, as an institution, to focus on making
our relationship with the Federal judiciary a more constructive and
mutually respectful one. Here in the Senate, where the Constitution
requires us to give our ``advice and consent'' on judicial nominations,
we have a special responsibility in this regard, a responsibility to
protect both democratic values and judicial independence. The
disgraceful manner in which the Senate has treated judicial nominees
does not help and may be a factor in the current breakdown of respect
between the legislative and judicial branches.
Too often, judicial nominees have been put through a litmus test by
my Republican colleagues to determine whether they will engage in
``liberal judicial activism.'' In fact, I cannot remember a recent
judicial nomination hearing in which one of my Republican friends has
not made a speech about ``liberal activist judges.'' Strangely,
however, hardly a mention is made of traditional judicial activism--
striking down democratically-adopted laws with which one happens to
disagree based on abstract principles with no basis in the
Constitution, as the Supreme Court did in the age discrimination case,
or overturning the long-standing precedent of a higher court, as the
Fourth Circuit did in the Miranda case. Nor do my colleagues seem
troubled by Justice Scalia's disdain for Congress. But I know that my
Republican friends are very concerned about ``liberal judicial
activism.'' The terms of this test change depending on the
circumstances.
From what I can gather, the easiest way to spot ``liberal judicial
activists'' is by the company they keep. You might call it the
``activist by association'' principle. Over the last few years, several
outstanding judicial nominees have come under attack simply because, as
young lawyers out of law school, they clerked for Supreme Court Justice
William Brennan. These nominees were tarred as potential activists not
because of anything they had done, but because of their one-year
association with a distinguished and respected member of the United
States Supreme Court. This test is applied only to delay or oppose
nominees--clerking for a conservative justice like Chief Justice
Rehnquist has not helped Allen Snyder, a nominee to a vacancy on the
D.C. Circuit who has been held up in Committee for months. Maybe
someone should send a warning to the students at the Nation's top law
schools that the Senate has become so partisan that clerking for the
Supreme Court can damage your career.
Other nominees were challenged because of their association with
legal organizations such as the American Civil Liberties Union and the
Woman's Legal Defense Fund or for contributing time to pro bono
activities. Maybe we should publish a list of groups you cannot
associate with, and of rights and liberties you cannot work to protect
in your private life, if you want to be a Federal judge.
How else can we tell if a nominee will be a ``liberal judicial
activist''? In the case of Margaret Morrow, it was unfounded
allegations that she was skeptical toward California voter initiatives.
With respect to Marsha Berzon we were told that she would be an
activist judge because she had been an ``aggressive'' advocate for her
client, the AFL-CIO. Maybe we should advise lawyers in private practice
who would like to be judges to be less vigorous in pursuing their
clients' interests. Of course, since their confirmations neither of
these nominees has been cited to be anything other than an outstanding
judge.
Then there is the old-fashioned litmus test. As a member of the
Missouri
[[Page S7761]]
Supreme Court, Justice White had committed the heresy of voting to
reverse death sentences in some cases for serious legal error. No
matter that Justice White voted to uphold the imposition of the death
penalty 41 times. No matter that other members of the Missouri Supreme
Court, including members of the Court appointed by Republican
governors, had similar voting records and more often than not agreed
with Justice White, both when he voted to uphold the death penalty and
when he joined with a majority of that Court to reverse and remand such
cases for resentencing or a new trial. Maybe someone should have
advised Justice White to follow the Fourth Circuit model and bat a
thousand for the State in death penalty cases, regardless of the
evidence.
Another litmus test that has been dressed up as a sign of ``liberal
judicial activism'': The nominee's willingness to enforce Roe v. Wade,
the Supreme Court's landmark abortion decision. I confess to some
confusion as to how a nominee for a lower Federal court could be
faulted for promising to adhere to established Supreme Court precedent.
Whether you agree with Roe or not, it is, after all, the law of the
land. But maybe someone should advise lower court judges to follow the
lead of the Fourth Circuit in the Miranda case and disregard Supreme
Court precedent.
We need to get away from rhetoric and litmus tests, and focus on
rebuilding a constructive relationship between Congress and the courts.
We need balance and moderation that respects the democratic will and
the weight of precedent. We do not need partisan delays by anonymous
Senators because a nominee clerked for Justice Brennan or contributed
to the legal services organization. We do not need our Federal courts
further packed for ideological purity. We do not need nominees put on
hold for years, as this Republican Senate has done, while we screen
them for their Republican sympathies and associations.
Mr. President, I ask unanimous consent to have printed in the Record
three recent articles about the Supreme Court's jurisprudential
counterrevolution, by Professor Larry Kramer of the New York University
School of Law; Professor David Cole of Georgetown University Law
Center; and John Echeverria, Director of Environmental Policy Project
at Georgetown University Law Center.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, May 23, 2000]
The Arrogance of the Court
(By Larry Kramer)
In 1994, after four years of very public debate, including
testimony from hundreds of experts in dozens of hearings,
Congress enacted the Violence Against Women Act. This month,
a bare 5 to 4 majority of the Supreme Court brushed all that
aside and struck the law down. Why? Not because Congress
cannot regulate intrastate matters that ``affect'' interstate
commerce. On the contrary, the majority agreed that this is
permitted by the Constitution, reaffirming a long-standing
point of law. But, the court said, whether the effects are
``substantial'' enough to warrant federal regulation ``is
ultimately a judicial rather than a legislative question, and
can be settled finally only by this Court.'' And the majority
just was not persuaded.
This is an astonishing ruling from a court that professes
to care about democratic majorities and respect the political
process. The justices did much more in this decision than
sweep the act off the books. Under a pretense of interpreting
the Constitution, they declared that they have the final say
about the expediency of an important, and potentially very
large, class of federal laws: not just laws under the
Commerce Power, which constitute the bulk of modern federal
legislation, but many other laws as well. For the limits of
all Congress's powers turn eventually on judgments about the
need for federal action.
This is radical stuff. Previous courts have exercised
aggressive judicial review, but never like this. Nothing in
the Constitution's language or history supports letting the
Supreme Court strike down laws just because it disagrees with
Congress's assessment of how much they are needed. Except for
a brief period in the 1930s when an earlier court tried to
stop FDR's New Deal and was decisively repudiated, the
court's role has always ended once it was clear that
legislation was rationally related to the exercise of a
constitutional power. As Alexander Hamilton observed back in
1792, rejecting the very same argument as that made by the
court today, ``the degree in which a measure is necessary can
never be a test of the legal right to adopt it.''
The Founding generation understood, in a way our generation
seems to have forgotten, that judicial review must be
contained or we lose the essence of self-government. They saw
that, while courts have a vital role to play in protecting
individuals and minorities from laws that trample their
rights, Congress's decisions respecting the need to exercise
its legislative power must otherwise be left to voters and
elections. They foresaw that questions would arise over the
limits of federal authority vis-a-vis the states. But, they
said (over and over again), those battles must be waged in
the political arena. And so they have been, until now.
What kind of government is it when five justices of the
Supreme Court, appointed for life by presidents whose
mandates expired long ago, can cavalierly override the
decision of a democratically elected legislature not on the
ground that it acted irrationally but because they do not
like its reasoning? By what right do these judges claim the
authority to second-guess what Justice Souter in dissent
accurately described as a ``mountain of data'' based on
nothing more than their contrary intuitions?
This is important. We have become way too complacent about
letting the Supreme Court run our lives, and the current
court has exploited this apathy to extend its authority to
unheard of lengths. Everyone in the country should be
incensed by this decision; not because the Violence Against
Women Act was so wonderful or so necessary, but because
deciding that it is not--and make no mistake, that is all the
majority did--is none of the Supreme Court's business. Yet
liberals will sit awkwardly by because they liked the
judicial activism we got from the Warren court, though that
court could not touch this one for activism. And, of course,
conservatives will gleefully hold their tongues because they
never much liked this law in the first place, and because
they adore the court's new federalism (not to mention the
chance to see liberals hoist by their own petard). In the
meantime, only democratic government suffers. Ironies this
thick would be comical were the stakes not so high.
The majority opinion is animated by a sense that the
Framers of our Constitution never imagined the federal
government enacting laws such as the violence act. I am sure
they are right; the Framers would be astounded at the changes
in society that have brought us to this juncture. But nowhere
near as flabbergasted as they would be at the
presumptuousness of five judges in casting aside the
considered judgment of the national legislature for no better
reasons than these--or at the complacency of the citizenry in
the face of such outrageous conduct.
____
[From The Nation, June 12, 2000]
Paper Federalists
(By David Cole)
When conservatives attack Supreme Court decisions
(admittedly an increasingly rare event these days), they
inevitably charge ``judicial activism.'' Miranda warnings,
the right to abortion, the exclusionary rule--all are
condemned for having been created by judges out of whole
cloth, based on ``interpretations'' of the Constitution that
are so unconstrained as to be entirely political.
When it comes to ``states' rights,'' however, conservatives
sing a different tune. In the past few years, the
conservative majority on the Supreme Court has launched a
virtual revolution in constitutional jurisprudence,
invalidating a host of federal laws on the ground that they
violate the autonomy not of human beings but of states. The
Court has revived the commerce clause as a limitation on
federal power after some fifty-odd years of desuetude. It has
found implicit in the Constitution a concept of ``state
sovereign immunity'' that jeopardizes Congress's ability to
require states to follow federal law. And it has divined from
the ``spirit'' of the inscrutable Tenth Amendment a principle
of state autonomy with little textual or historical basis. In
doing these things, the Court's most conservative Justices--
Rehnquist, Scalia, Kennedy, O'Connor and Thomas--have engaged
in the very sort of open-ended, freewheeling constitutional
interpretation that they excoriate liberals for indulging in
on issues of individual rights.
This Court's activism on federalism begins with the
commerce clause, which for most of our history has been the
leading barometer of judicial attitudes toward the balance
between state and federal power. In the early part of the
twentieth century the Court frequently invoked the clause to
strike down labor laws regulating minimum wages, maximum
hours and working conditions. The Court reasoned that
Congress could regulate only ``commerce,'' not manufacturing
or production, although its actual animating principle was a
commitment to laissez-faire capitalism.
During the New Deal, the Court abandoned this approach and
acknowledged that in our increasingly national economy, the
terms of production--such as wages, hours and working
conditions--obviously affect interstate commerce. It
ultimately interpreted the commerce clause to permit Congress
to regulate any local activity that, aggregated nationally,
might substantially affect interstate trade, a reading that
largely took the judiciary out of the job of restraining
Congress and relied on the political process to do so.
That's where things stood until 1995, when the Court struck
down a federal law prohibiting the possession of guns near
schools.
[[Page S7762]]
Then, on May 15, the Court invalidated the Violence Against
Women Act, a federal law enabling victims of gender-motivated
violence to sue their attackers. In both cases the Court held
that Congress may not regulate local ``noneconomic''
activity. Neither gun possession nor gender-motivated
violence is ``economic'' activity and must be left to the
states to regulate. Congress's findings that violence against
women reduces their ability to participate in the work force
was insufficient to justify federal regulation. But if
Congress has the power to regulate conduct where it
``affects'' interstate commerce, why should it matter whether
the conduct itself is labeled ``economic'' or
``noneconomic''? The Court seems to have created a
distinction every bit as artificial as the long-rejected line
between production and commerce.
The Court's activism is even more pronounced in its
treatment of ``state sovereign immunity,'' the doctrine that
the sovereign--in this case a state--may not be sued. The
Eleventh Amendment to the Constitution does recognize a very
limited immunity that protects states from being sued by
citizens of other states in federal court, at least for cases
not based on federal law violations. But today's Court has
ignored the explicit language of the amendment to create an
expansive immunity that blocks virtually all private
suites against states, in state or federal court, under
state or federal law. As a result, state employees cannot
sue their employer--anywhere--for blatant violations of
federal laws, such as the Fair Labor Standards Act. The
only exception to this state immunity is where Congress
has authorized suits under the Fourteenth Amendment, but
the Court has also sharply limited Congress' power to
regulate states under that amendment.
A third arena for the states' rights revival is the Tenth
Amendment. That provision has literally no substantive
meaning. It states only that all powers not assigned to the
federal government are reserved to the states or the people.
The Court once dismissed it as ``a truism.'' But in recent
years, the conservative majority has found in its ``spirit''
the authority to strike down federal statutes for requiring
state officers to carry out even very minimal tasks in
furtherance of a federal program, such as the Brady Bill's
requirement that local sheriffs conduct brief background
checks on would-be gun purchasers.
So why do states' rights issues drive conservative Justices
to abandon their cherished principle of judicial restraint?
There is undeniably a conservative cast to federalism in the
United States. States' rights have nearly always been invoked
in support of rightwing causes, from slavery to segregation
to welfare devolution. But no one would seriously suggest
that today's Court is using federalism as a cover to protect
those who carry guns near schools or rape women.
What really drives the conservative Justices toward states'
rights is their antipathy to individual rights. ``States'
rights'' is itself something of an oxymoron; rights generally
describe legal claims that people assert against government,
not claims of governments. Protecting states' rights nearly
always directly reduces protection for individual rights. The
Court's sovereign immunity decisions bar individuals from
suing states for violating their federal rights. And its
commerce clause and Fourteenth Amendment decisions have
reduced Congress's ability to create federal statutory rights
for individuals in the first place.
The link between protecting the ``rights'' of states and
disregarding those of individuals is illustrated even more
clearly in the Rehnquist Court's treatment of habeas corpus
and federal injunctions. The Court has consistently cited
deference to the states to justify shrinking the rights of
state prisoners to go to federal court for review of their
constitutional claims. And it has grandly invoked ``Our
Federalism'' to limit the ability of federal courts to
oversee and enjoin police abuse against minorities.
Paradoxically, then, this Court is most activist in
restricting its own power. The conservative Justices eagerly
engage in open-ended constitutional interpretation when the
result forecloses an avenue for rights protection but assail
their liberal counterparts for doing so when the result is to
recognize an individual right. As a result, states receive
far more solicitude than individuals. But the opposite should
be the case: The Court's highest calling is not the
protection of regimes but of individuals who cannot obtain
protection from the political process.
____
It's Conservatives Now Who Are Judicial Activists: Why
Environmentalists Should Be Alarmed
(By John Echeverria)
Recent federal court decisions concerning our environmental
laws cry out for a giant reality check on the recently
renewed political debate about whether federal judges should
be ``strict constructionists'' when it comes to deciding
issues of constitutional law.
Governor George W. Bush last month revived a familiar GOP
mantra when he declared that he would only appoint ``strict
constructionists'' as opposed to ``judicial activists'' to
the federal bench. This stance echoes similar statements by
Bob Dole, the GOP standard bearer three years ago, as well as
by paterfamilias George Bush I and the modern GOP's founding
father, Ronald Reagan.
Governor Bush's political declaration has a kind of
through-the-looking-glass quality all too familiar in modern
American political life. While Bush and others on the
political right decry judicial activism, in some arenas of
constitutional law, particularly those affecting our
environmental laws, it is GOP-appointed judges who are
actually the most activist.
On the other hand, out of a habit of supporting an
expansive approach to constitutional interpretation, which
apparently served their ideological interests in the past
befuddled democratic forces rise to the bait of defending the
judiciary against charges of ``judicial activism'' even as
their environmental protection gains, achieved through hard-
fought battles in the political arena, are being taken away
by GOP-appointed judicial activists.
Sensible conversation about the virtues and limitations of
a ``strict constructionist'' approach to judicial
interpretation calls in the first instances for an accurate
understanding of how the federal bench is actually deciding
real cases today.
In simplistic terms, a judge is said to be a ``strict
constructionist'' if she resolves constitutional cases solely
on the basis of the language and original understanding of
the constitutional text. On the other hand, a judge who looks
to other sources for interpretive assistance, such as some
particular social or economic philosophy, is said to engage
in judicial activism.
Governor Bush left undefined the specific rulings he thinks
reflects judicial activism. But similar GOP pronouncements in
the past honed in on the U.S. Supreme Court's expansion of
the constitutional rights of the criminally accused under the
leadership of Chief Justice Earl Warren in the 1950's and
60's.
Another favorite target has been the Court's decision in
Roe v. Wade, which interpreted the Constitution to create a
zone of privacy granting women the constitutional right to
decide whether or not to terminate a pregnancy without state
interference.
Whether or not these (now somewhat dated) judicial
innovations can fairly be characterized as the product of an
activist judiciary, it is undeniably true that the charge of
judicial activism can, with at least equal fairness, be
lodged against more recent judicial decisions that serve a
so-called ``conservative'' 'philosophy.
This is particularly true in cases involving constitutional
challenges to the authority of government to adopt and
enforce environmental regulations. Consider the following
examples.
Over the last decade, the U.S. Supreme Court has issued an
unbroken string of decisions expanding public liability under
the takings clause of the Fifth Amendment for environmental
and land-use regulations that impinge on private property
interests, undermining the ability of the government to adopt
new environmental protection standards.
The takings clause states that ``private property [shall
not] be taken for public use, without just compensation.''
According to leading scholars on all sides of the ideological
spectrum, the available historical evidence unequivocally
shows that the drafters of the Bill of Rights intended the
clause to apply only to direct appropriations of private
property, and never intended the clause to apply to
regulations under any circumstances.
In its recent decisions, however, the Court has established
the takings clause as a significant new constraint on
environmental regulatory authority. From the standpoint of a
principled strict constructionist, this direction in judicial
thinking would be simply indefensible.
The same is true of recent Supreme Court decisions limiting
citizens' right to sue to enforce federal health and
environmental laws.
There is a general academic consensus that the drafters of
the Constitution intended Congress to have broad power to
grant private citizens the right to bring suits in their own
names to enforce federal laws. Nevertheless, over the last
decade the U.S. Supreme Court, led by Justice Antonin Scalia,
has erected new barriers which citizens must cross to
establish their right to bring suit to enforce environmental
laws.
The Court's recent decisions for example, have severely
undermined the Clean Water Act and the Endangered Species
Act, and more particularly the role Congress intended for
citizens in enforcing those laws, a result which principled
advocate of a non-activist judiciary should supposedly abhor.
Conservatives living in glass houses might start a move
toward a more sensible debate by refraining from hurling
rocks in the direction of the federal judiciary. Or perhaps
liberals may wish to rethink a strategy based on warding off
rocks tossed by others, and may wish to consider hurling a
few of their own.
Mr. LEAHY. Mr. President, I see my good friend from Utah on the
floor. I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, I thank the Senator from Vermont. I am
looking forward to sharing some ice cream with him a little later today
in response to his gracious invitation. I appreciate his courtesy.
____________________