Mitt Romney and the Supreme Court
Douglas W. Kmiec is a professor of constitutional law at Pepperdine University. He served as Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice under Presidents Reagan and George H.W. Bush. He serves now as a co-chair of the Romney for President Advisory Committee on the Constitution and the Courts.
In the piece below, submitted to Power Line by the Romney campaign, Professor Kmiec previews the Supreme Court term that starts this week, and argues that a President Romney would appoint Justices who decide cases consistent with a deep understanding of the rule of law. This includes the kind of approach to judging that Justice Thomas described at dinner on Monday which is called "originalism." It also includes an awareness that, as Justice Scalia has put it, the Supreme Court is not a "junior varsity Congress."
With the beginning of the new Supreme Court term, it is appropriate to reflect, yet again, on the founders' intention for the Court to be the "least dangerous branch." This does not mean that the Court was thought to be unimportant. Quite the contrary, in introducing the Bill of Rights, James Madison anticipated that the Court would be the guardian of our civil liberties.And even before the Bill of Rights were added as amendments, Alexander Hamilton keenly observed that the Constitution itself, in its structural separation of powers, was itself a Bill of Rights. No, the appellation as "least dangerous" was meant as a compliment. It was the Court that would be the keeper of foundational ideals, including the founding idea most essential of all – that the Constitution was a sublime reflection of human nature which was to be construed consistently with the premises of the Declaration of Independence. A great Chief Justice once said, "the Declaration is the promise, the Constitution, its fulfillment."
Of course, no parchment barrier, including the Constitution, whether it contains an eloquent expression of right or a thoughtful division of power can truly protect liberty, unless the men and women who are called to the bench appreciate and respect the text, history and design of the Constitution. Already the Supreme Court has agreed to review a number of important cases that will test this fidelity. Each of these cases requires us to ask whether in this republic the people, or unelected judges, will be their own governors?
Take for example the issue of the applicability of the writ of habeas corpus to the continuing reality of terrorism. Does the writ extend in such a way that aliens who made war against the United States have the very same rights as law-abiding citizens? As Justices Scalia and Thomas observed in dissent to an earlier Supreme mistake misconstruing statutory habeas rights to include those detained in Cuba and perhaps anywhere in the universe (Rasul v. Bush (2004)), the consequences of allowing an alien captured in a foreign theater of active combat to bring a habeas petition against the Secretary of Defense are "breathtaking." Are military commanders really going to be hauled into district court to answer those captured in battle? The incredibility of Rasul, then and now, was great to the man on the street and a majority of Congress as well. Overturning the statutory finding in Rasul, Congress determined that the writ does not apply to alien detainees being held in Guantanamo and elsewhere outside the formal territory of the United States. Instead, Congress supplied a carefully-drawn alternative review process of military detention through the D.C. Circuit. The question is whether Congress will be respected. It should.
Admittedly, the constitutional dimensions of the writ of habeas corpus are not always self-evident. Yet, to know the answer to that difficult question, and others like it, requires only a good-faith understanding of the Constitution's original meaning. Do "we the people" really have sufficient confidence that the justices will objectively seek out this original meaning and apply it? Unfortunately, because some members of the judicial branch have imposed their personal will in the past, there is legitimate doubt as to whether America today still lives by the rule of law.
Grasping the significance of the rule of law is one of the most understated aspects of the current presidential campaign. While virtually every Republican candidate has said something adequate about avoiding judicial activism, legislating from the bench, or a la Richard Nixon, being a strict constructionist, only one, Mitt Romney, truly has demonstrated by his state executive experience as Governor that he is capable of sustaining, without the distractions of politics or friendship, an historically-informed appreciation for what John Locke meant by the rule of law in his Treatise on Government: general enactments, prospectively applied, that are enforced evenhandedly and interpreted by a disinterested and capable judge. Maybe Romney is inspired by the knowledge that the historic phraseology "rule of law" comes from the original Massachusetts Constitution of 1780, which noted that the powers of government shall be kept separate, and specifically, that "the judicial power shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." Or perhaps its simply Romney's unalloyed belief that the rule of law must never be allowed to be distorted as partisan or contradicting of such fundamental values as life or marriage between a man and a woman. But whatever the source of the inspiration, my conversations with Governor Romney and study of his past state judicial appointments convince me that a President Romney will make nominations in the tradition of Roberts, Alito, Scalia and Thomas, and before all else, will insist that the women and men to be appointed have a demonstrated record of valuing the rule of law in the fuller sense discussed here.
The importance of adhering to this standard is revealed in yet another case on the Court's docket. The people, through the Congress, made it a crime to engage in the pandering of what is, or made to seem to be, child pornography. Several times in years past, Congress has attempted to keep this ugly material off the Internet or to limit its access by children. Regrettably, each time, the justices have seen fit to strike such common sense legislation down as limiting free speech. In my judgment, no one has a right to transform the denigration of women and the exploitation of children into a specious claim of protected speech. Governor Romney has made protecting our children a top priority. He has outlined an ambitious agenda to ensure that our children are guarded against those who seek to do harm. These policy efforts should be applauded, not blocked by the courts, and certainly not by distorting the important protection of free speech. If justices would just talk with their neighbors, and seek to be good ones, I expect they would conclude as much.
In the context of criminal law, Congress has been wrestling for some time with the difficult issue of illegal drugs. Crack cocaine is a particularly dangerous form of drug abuse and Congress has provided stiff penalties for those using and distributing this substance. Does the fact that other forms of drug use are subject to lesser penalty mean that the people's voice on crack cocaine laws can be ignored? Some judges think they are free to disregard the legislatively prescribed sentence, finding it misguided policy or unfair. Policy making is for Congress. Make the argument from fairness to the people; they will respond. Judges ought not presume to set aside the people's choice, however, by changing the law by judicial decree.
There is no matter more basic to the health of a democracy than elections and an honest count of the vote. Indiana has sought to assure this by the imposition of a reasonable identification requirement. Democrats want to make this common sense requirement into a major civil rights battle. It isn't. We routinely and readily supply identification to complete a purchase at a department store or to board a plane. Why anyone would think it excessively burdensome to do so in conjunction with voting is a bit baffling. The notion that the equal protection clause invalidates this responsible check against fraud is just an invitation to reading into the Constitution something that isn't there. It should be resisted.
Finally, likely headed to the Court's docket is the invalidation by a lower court of the District of Columbia's handgun ban. Here again because this is another issue that divides many people, we need to be able to count on the integrity of the justices to resolve matters. As Governor Romney has said about this case, "I hope the Roberts court takes the Parker case and upholds the Bill of Rights . . . ." Governor Romney recognizes that the best way to respect the Second Amendment - like other protections in the Bill of Rights - results when, but only when, the justices are fairly guided by the original meaning of the constitutional text.
The importance of the work of the Supreme Court to constitutional governance must not be undervalued. During the immediate years following the next presidential election, there are likely to be one or more vacancies that will either secure the bench as a faithful exponent of law or corrupt it by the specious idea that there is no meaningful distinction between law and politics. The court is said to be very closely divided on each of these cases. Indeed, it is frequently speculated that the outcome may well depend upon the mind of a single justice who sometimes is conservative and sometimes is liberal. That should distress all of us. The whole idea of law was equal justice and not partisan labels.
As illustrated by this brief essay, the Court has chosen, perhaps imprudently, to once again intervene into the war on terror. Also on the judicial work table are legislative efforts to protect children from the worst forms of filth as well as horrific abuse, the death penalty, and our bedrock constitutional liberties. Whether it was right or wrong for the court to take these cases, having done so, it is now their duty to dispose of them under the law as written, and not under the law as they would like it to be. Knowing Governor Romney to be particularly admiring of the jurisprudence of Justice Scalia, I reminded him recently of a phrase used by Justice Scalia to bemoan the disregard of the separation of powers, specifically, that the court is not a "junior varsity Congress." Governor Romney smiled broadly, understanding fully, how the Court, which he greatly respects, must never presume to displace the duly elected – first string – legislature.
I am confident that when the people of Iowa and New Hampshire have spoken, my fellow travelers promoting original understanding, limited government, and human freedom will rally to the side of the best candidate. Supporting Governor Romney now just allows me – and the vast number of other prominent lawyers and law professors who believe that it ultimately is the American people who should decide the direction of this nation – to beat the rush.
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