REMEMBER the Justice Department fiasco concerning charitable deductions for discriminatory schools? Well, here comes another bold effort to reshape the legal landscape. It comes, interestingly enough, at about the same time the Senate is debating proposals to curb the impact of Supreme Court decisions on abortion -- legislation many scholars believe would be an unconstitutional incursion on the judiciary's role in construing basic liberties.
On behalf of the United States of America, Solicitor General Rex Lee has filed a brief with the Supreme Court arguing that federal courts should stay away from certain subjects simply because they are controversial and defer to legislatures. The danger, says the brief, is that courts "constitutionalize" their policy judgments, thereby removing them from the healthy give and take of broad public debate. At the moment, Mr. Lee applies this to abortion: having articulated the basic notion that there is a constitutionally protected privacy interest at stake, the courts should leave it to state legislatures to set the bounds of that liberty. This union of the new federalism with traditional conservative objections to judicial activism has produced a dangerous beast.
Why? Because the Bill of Rights was designed to protect against the excesses of political majorities that might use the strength of the state to trample unpopular views and interests. Turning over to the political branches the most difficult and controversial subjects, involving conflict between individual liberties and the power of government, stands the Constitution on its head. Calling those conflicts "policy" is like calling the Constitution a campaign platform. And decentralizing the Bill of Rights gives up on the ideal of one nation with shared notions of justice. Privacy and freedom of speech should not mean one thing here and another there.
The courts, particularly when striking down legislation, are anti-majoritarian; they have to be. When enough people are dissatisfied with judicial interpretation of a statute, the remedy is to change the statute; and when they disagree on the meaning of the Constitution, the remedy is to amend it. The proposed equal rights and right to life amendments would do just that.
Courts are not supposed to substitute their policy judgments for those of legislatures or agencies. There can be respectable argument about whether an interest should be declared a constitutional right in the first place, but once the courts have declared its existence, they must enforce it and make sure the political process does not circumvent the original court decision. There is certainly a point, difficult to discern, when a court's task of describing and enforcing rights invades the domain of the political branches. For example, a court might properly conclude that terrible conditions in a prison violate the Eighth Amendment's prohibition of cruel and unusual punishment, but then err by imposing a very detailed solution rather than considering alternative means proposed by state officials to reach the same end.
However, in suggesting that when enforcement is controversial the courts ought to tread softly or even abdicate, Mr. Lee is inviting the court to ease its workload and increase its popularity (in some circles), but also inviting it to gut the constitutional guarantees themselves by politicizing their definition -- a process already under way in the Senate this week.
Perhaps in 1954, this theory of sweeping deference to politics would have permitted the landmark decision abandoning the doctrine of "separate-but- equal" segregated public schools, but that is doubtful. There certainly would not have followed a series of courageous Supreme Court decisions forcing recalcitrant jurisdictions to recognize the belatedly proclaimed rights of blacks. The court did not hide from controversy in those cases; it reasoned from a vision of justice, rather than from an opinion poll.