By Edwin Meese III
Every vote counts. And this year, it could count double. One vote could decide both the immediate election and the course of constitutional law for decades to come.
Just ask the senior federal officials responsible for our security immediately after 9/11 who were sued years later by Javaid Iqbal. During the investigation into the attacks, FBI officials identified Iqbal as a suspect of high interest and detained him in New York. He sued alleging that high government officials, including Attorney General John Ashcroft, personally ordered that he be discriminated against on the basis of religion, race, or national origin.
Iqbal provided no facts in support of his conspiracy theory. When his case finally reached the Supreme Court, five justices properly, but narrowly, rejected his speculative claims that would have cleared the way for plaintiffs’ lawyers to embark on fishing expeditions in hopes of winning windfall damages from current and former federal officials. Only a single vote in the high court kept Iqbal and countless others with no proof of any wrongdoing outside their own imagination from subjecting government officials to depositions and other harassing litigation tactics. Though the chance of hitting a punitive-damages jackpot is small, the prospect of such an award would have ensured a steady flow of rapacious court challenges.
Americans naturally consider many issues in casting their vote for President. But they should remember how important their votes will be in deciding the nation’s constitutional course. Neither presidential candidate has made his criteria for judicial nominations much of an issue during this campaign, but whom we select as President may well determine the viability of the rule of law for the foreseeable future.
The right approach was best articulated by Ronald Reagan. As he said on the day that Chief Justice William Rehnquist and Justice Antonin Scalia were sworn in:
[Our Founders] settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. The framers of our Constitution believed…that the judiciary they envisioned would be “the least dangerous” branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had “neither force nor will, but merely judgment.” The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported.
Justice Felix Frankfurter put it this way: “the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law."
Sadly, too few judges today understand their proper role. Rather than exercising judgment, they impose will. This form of judicial activism substitutes personal preferences for the command of law. The rule of law is not an infinitely flexible tool that allows the bench to impose its policy choices on the citizenry. Rather, it is a defined set of boundaries derived from the text of the Constitution and accompanying statutes.
The meaning of those texts was fixed at the time of adoption; any other approach rejects democracy for oligarchy. Words, in context, have real, binding meanings. Even if reasonable people disagree about some hard cases, judges should aim to discern and apply the original public meaning of the text at issue rather than what they want it to mean.
In recent decades, judges have made many decisions unconstrained by the rule of law. Far too often the Supreme Court itself, by a 5-4 vote, contorts the text of the Constitution or a statute to reach a preferred policy result, substituting its own judgment for that of the legislature or the Framers.
Consider a small sampling of recent decisions where a single, misconceived vote mattered.
In McCreary County v. ACLU, the 5-4 majority held that the display of the Ten Commandments in a county courthouse violated the Establishment Clause because it was supposedly not sufficiently integrated with a secular or historical message.
In Kelo v. City of New London, a thin majority decided that a city may take private property—including people’s homes—and give it to a big corporation, supposedly to generate more tax revenue. This decision ignored the clear constitutional requirement that property be taken only for “public use.”
In Massachusetts v. EPA, the Court usurped a political question from the legislative and executive branches and jumped into the middle of the global warming regulatory debate. In so doing, it overturned the Environmental Protection Agency’s reasoned decision not to regulate greenhouse gas emissions, and required the EPA to adopt a regulation.
And no discussion of controversial 5-4 decisions would be complete without mentioning the Court’s decision in NFIB v. Sebelius last June. There, a bare majority upheld the Patient Protection and Affordable Care Act under the guise of reading its individual mandate as a tax.
As Americans go to the polls this month, they should ponder President Reagan’s words: “Those who sit in the Supreme Court interpret the laws of our land and truly do leave their footprints on the sands of time. Long after the policies of Presidents and Senators and Congressmen of any given era may have passed from public memory, they'll be remembered.” Every vote does, indeed, count.
Edwin Meese III, the former U.S. Attorney General, is the Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at The Heritage Foundation.
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