ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

In USA Today, Erwin Chemerinsky and Katherine Fisk have an op/ed deriding “President Bush and Republican politicians [who] constantly repeat, as a mantra, that Roberts is a desirable choice because he won't ‘legislate from the bench’ and will merely ‘apply the law, not make it.’� According to their op/ed, “almost all tort law (governing accidental injuries), contract law, and property law are made by judges.� Chemerinsky and Fisk hide the fact that they are referring here to law made by state judges rather than federal judges, and they also conveniently neglect to mention that such common law is almost always subject to modification by state legislatures.

When finally their USA Today op/ed gets around to talking about federal judge-made law, these two fiction writers say the whole doctrine of judicial review was created by judges rather than by law-makers. That's absurd. The framers of the Constitution understood perfectly well that judges would have to determine which law governs in a particular case, such as an older statute versus a newer contrary statute. Determining which law governs in a particular case is all the federal courts are doing when they decide that a constitutional provision applies instead of a contrary statute. Alexander Hamilton explained this whole matter in painstaking detail, in Federalist 78.

Chemerinsky and Fisk also say that the Rehnquist Court’s sovereign immunity jurisprudence was judicial lawmaking, in that it created “a wholly invented broad principle nowhere mentioned in the Constitution,� but actually there is a clause of the Constitution that says Congress can only exceed its specific enumerated powers when doing so is “necessary and proper.� Here’s what the Court said in Alden v. Maine about how the language of the Necessary and Proper Clause defeats congressional attempts to eliminate a state's sovereign immunity:

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers… When a law for carrying into execution the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions, it is not a law proper for carrying into Execution the Commerce Clause.

Despite this clear textual basis for the Court's sovereign immunity decisions, Chemerinsky and Fisk preposterously claim that “the court's sovereign immunity decisions are open to the same criticism� as Roe v. Wade. They add that the “Constitution says no more about sovereign immunity than it does about privacy.� Actually, the Court has no choice but to strike down inappropriate statutes that are not necessary and proper for carrying the specific powers of Congress into execution, just as the Court must also strike down statutes that invade the privacy specifically protected by, for example, the Fourth Amendment. Neither exercise of judicial review involves legislation by judges, and instead it involves interpretation and elucidation of the Constitution’s commands. In contrast, when judges issue edicts that are not required or implied or authorized by the Constitution, then judges do enter the forbidden realm of legislating from the bench.

Chemerinsky and Fisk write: “Lawyers know that the oft-repeated phrases about judges making law are just slogans. But the quality of public debate is lowered when people insist upon something they know to be false.� Sure, and the first sentence of the Constitition is just a slogan: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.�

UPDATE: Chemerinsky and Fisk also allude to the case of Skinner v. Oklahoma as an example of valid judicial legislation. However, in that case, the Supreme Court was attempting to carry out the commands of the Equal Protection Clause, rather than exerting its own will. An Oklahoma law required sterilization of 3-time felons, except for "offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses...." The Supreme Court concluded that treating embezzlement differently from other equivalent felonies violated the Equal Protection Clause. The Court was not resorting to principles that are implied nowhere in the Constitution, and so Skinner cannot be considered an instance of judicial legislation.