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High Court Caricature

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By Ruth Marcus
Wednesday, May 14, 2008

The court stepped in, summarily overturning laws in 16 states. Tossing aside evidence that the constitutional provision was never intended to apply to the situation at hand, the court instead looked to what it grandly described as the "broader, organic purpose of a constitutional amendment."

Another example of "unelected judges" demonstrating "little regard for the authority of . . . the states" and "even less interest in the will of the people"? Of judges, unconstrained by constitutional text or history, turning to " 'emanations' . . . and other airy constructs the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning"?

The case is Loving v. Virginia, the 1967 ruling in which a unanimous Supreme Court found that state laws prohibiting interracial marriage violated the constitutional guarantee of equal protection. The decision has been on my mind recently because of the death this month of Mildred Loving, the African American woman who dared to marry a white man and try to live with him in Virginia. Last week, I happened to listen to C-SPAN's riveting rebroadcast of the oral argument.

A few days before that program, John McCain delivered the tired broadside, quoted above, against activist judges. As my car radio crackled with the tinny voice of Virginia's lawyer urging the court not to usurp the state's "legitimate legislative objective of preventing the sociological and psychological evils which attend interracial marriages," I could not help but recall McCain's critique.

I'm not suggesting for a second that the presumptive Republican nominee opposes interracial marriage or disagrees with the ruling. My point, rather, is that the debate over the role of the judiciary deserves a far more nuanced approach than McCain's caricature of "the common and systematic abuse of our federal courts by the people we entrust with judicial power."

"I disagree with Senators Clinton and Obama that federal judges should be able to legislate from the bench," says a petition on McCain's Web site -- as if his Democratic opponents have made that outlandish claim to judicial power.

The world he sketches of liberal Judges Gone Wild is largely imaginary. The freewheeling jurisprudence of the 1960s has tempered, if not vanished. That's not surprising: Seven of the nine Supreme Court justices are Republican appointees, as are about 100 of the 166 appeals court judges.

Indeed, the supposed distinction between activist liberals and color-inside-the-constitutional-lines conservatives is not only phony but often backward. In its first 200 years, the Supreme Court struck down fewer than 130 acts of Congress; in the past 13 years, it has overturned more than 30, including a piece of McCain's signature campaign-finance law. This behavior is hardly the "humility" McCain argues should be restored to federal courts.

Last year, the court told school districts that they could not adopt voluntary integration plans that use race as a factor in assigning students. Talk about legislating from the bench. I don't recall McCain complaining then that the court was intruding "on policy questions that should be decided democratically."

And, notwithstanding Justice Antonin Scalia's recent admonition to "get over it," the court's intervention in the 2000 Florida recount was the ultimate in judicial aggrandizement. To quote McCain, "A court is hardly competent to check the abuses of other branches of government when it cannot even control itself."

McCain's bill of particulars against activist judges was particularly unimpressive. He assailed one justice for stating "that he was basing a conclusion on 'my own experience.' " This was John Paul Stevens this year questioning the constitutionality of the death penalty -- and then, respecting the importance of precedent, voting with the majority to uphold lethal injection.

McCain derided Anthony Kennedy's 2005 opinion invalidating the death penalty for juveniles because it invoked international law (although it wasn't the basis for the ruling) and relied on gauzy tests such as "evolving standards of decency," the court's touchstone in capital cases.


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