The courts in the United States are more powerful than the judiciary in any other country. The United States may truly be described as a nation ruled by judges. This feature of the American political system is very old. In the 1830s, Alexis de Tocqueveille, a young French aristocrat visiting the world’s leading democracy observed, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
Wielding the power of judicial review, in the twenty-year period, 1970-1989, the United States Supreme Court invalidated 324 state laws and 38 acts of Congress. Its veto is as frequent as the President’s—but with the important distinction that it cannot be overturned.
To give you an appreciation of what life in such a country is like, I will use my home state of Tennessee as an example. Judicial governance is a fact of daily existence. It is not well understood that state judges have joined their federal counterparts in making law. Judicial activism since the 1960s has percolated down the judicial hierarchy from the U. S. Supreme Court, to the U. S. Courts of Appeal, to the U. S. District Courts and from there to the state supreme courts.
In Tennessee, aggravated murder is a capital offense. Currently there are more than 100 convicted murderers on death row, awaiting execution. Yet, the reality is that not one execution has taken place in Tennessee since 1960. The reason is simple. The justices of the state supreme court are in principle opposed to capital punishment and refuse to allow trial courts' death sentences to be carried out.
In 1993 the Supreme Court of Tennessee ruled that reliance on the local property tax to fund public education was inconsistent with the equality provision of the state constitution. Urban school districts, drawing upon a large tax base, spent significantly more per student than did rural districts. The supreme court ordered the state to increase substantially the amount of per pupil expenditures outside the cities and suburbs. Tennessee thus joined 13 other states where the state supreme courts have ordered fundamental changes in the way public schools are financed. To comply, Tennessee’s governor, Ned McWherter, was forced to channel a large percentage of the growth in the state’s revenues between 1993 and 1998 to the rural schools and to increase the role of the state in what had been a largely a local responsibility.
As heavy as the burdens imposed by the state supreme court have been, they pale in comparison with those imposed by the U. S. District Courts in Tennessee. In the 1960s, following the U. S. Supreme Court’s decision in Brown v. Board of Education (1954), Tennessee’s urban school districts came under federal judicial supervision. For more than 30 years, the Memphis City schools have been under the daily administration of a single federal judge. In the 1970s, the judge, frustrated by the slow pace of desegregation, imposed forced bussing upon the city. The city was ordered to spend hundreds of thousands of dollars to purchase school busses. The judge, through a court-appointed special master, assigned pupils to specific schools in order to achieve racial balance. In Europe, scholars and politicians refer to these kinds of judicial decrees as instances of “social engineering.” The detailed bussing plan took the form of an injunction—a remedy in equity. The result has been massive white flight from the city’s public schools, which are now 85% black. White parents in droves removed their children from these schools and placed them either in private schools in the city or moved to the suburbs and enrolled their children in schools not touched by bussing.
Another federal judge found that the state’s prison system was guilty of systematic violation of prisoners’ constitutional rights. He ordered the state to close its oldest facilities and to construct modern, state-of-the-art penitentiaries. I recently visited the state’s new maximum-security facility, best known for housing the late James Earl Ray, assassin of Dr. Martin Luther King, Jr. The prison, which houses Tennessee’ most nefarious offenders, looks like a college campus and features the latest in recreational facilities, including Nautilus gym equipment and basketball courts. The cost of new prison construction has been tens of millions in state funds, and the final bill is not yet in.
Memphis is located in Shelby County, the most populous county in the state. Routinely, prisoners in the Shelby County jail file complaints with the U. S. District Court for the Western District of Tennessee, alleging unconstitutional treatment or conditions. Because the courts will not permit overcrowding, the jail frequently releases prisoners long before their sentence is completed to make room for new offenders. The county spends millions in legal fees defending itself in these suits and millions more in making improvements to the jail.
Two years ago a U. S. District judge in Memphis found the state’s public mental health facilities to be in systematic violation of its patients’ constitutional rights. The major complaint was insufficient and inadequately trained staff. The judge appointed a special master, a sociologist from Florida, to investigate the largest mental hospitals and make recommendations on improvements. The judge ordered the state to pay all her expenses and fees and those of other experts subsequently appointed. When the final decree was issued, the price tag was enormous. When the state dragged its feet in making the ordered expenditures, the judge held the State Commissioner of Mental Health in contempt of court. To make his point even sharper, he ordered her on the weekends to live in the institution found to be in the worst condition. After a few weeks of this humiliating experience, she resigned as commissioner. The state is still paying the bill for massive court-ordered improvements in the mental health infrastructure.
The Memphis police and fire departments have not escaped judicial administration. As a result of several suits filed by black employees and applicants, the federal District Court has ordered the city to remedy past racial discrimination by hiring one black police officer or firefighter for every white employed. Moreover, the judge ordered the city to ignore the contract with the police and fire unions when making layoffs. Seniority cannot be allowed to undo the achievement of racial balance, said the judge.
Memphis is not the only municipality to have felt the heavy hand of the federal courts. In the early 1990s, a federal judge ordered the City of Yonkers, New York, to distribute its public housing units throughout the city rather than concentrating them in low-income neighborhoods. The Mayor and City Council refused to comply with the judge’s order. He found them in contempt of court and fined them a $1,000 a day until they complied. When this sanction did not work, the judge dismissed the council, who were elected officials, and ordered the governor of New York, Mario Cuomo, to take responsibility for administration of the city.
Appalled at the extent of white flight from the public schools of Kansas City, Missouri, following implementation of court-ordered bussing, a federal judge ordered the city and the state to spend $1.2 billion in improving city high schools. The judge's expectation was that these new and refurbished secondary schools would act as "magnets" for white students who had fled the city's public schools. To provide its share of the cost, the city had no choice but to double property taxes. The state legislature intervened at that point forbidding the city council from taking such action. The federal judge thereupon ordered the tax increase on his own, and the judicial decree was enforced. It is a bitter irony that in a country whose independence was fought for under the slogan, "No taxation, without representation," an unelected, life-tenured federal judge can impose taxes on the American people.
The story of judicial policy making at the national level is better known than the experience of states and municipalities subject to judicial mandates. Unlike the Canadian Constitution, the U. S. Constitution does not confer the power of judicial review upon the courts. The power to declare acts of Congress unconstitutional was first claimed by the Supreme Court in Marbury v. Madison (1803). Chief Justice John Marshall inferred the power as a matter of logic. The Court first wielded this power to nullify a major congressional policy in 1857 in Dred Scott v. Sandford. Chief Justice Roger Taney held that Congress had no power to exclude slavery from the territories of the United States. The Republican Party and the northern wing of the Democratic Party refused to accept the Court's reading of the Constitution, and civil war soon followed.
After the war, the federal courts concentrated on economic policy. Appalled at what they regarded as attempts by state legislatures and Congress to impose socialism on the nation, conservative judges used the power of judicial review to strike down a myriad of government regulations of the market, including child labor, minimum wage and maximum hour laws. In 1935 and 1936, the Supreme Court invalidated all the major pieces of President Franklin Roosevelt's New Deal, a legislative program designed to lift the United States out of the Great Depression. Roosevelt, however, succeeded in mobilizing public opinion against the Court's laissez-faire agenda, and the Court backed down in 1937.
Beginning in 1938, liberal justices began using judicial review to make national policy in the area of civil rights and civil liberties. The judicial activism of the right was replaced by activism of the left. The new era was heralded in 1954 by the Supreme Court's Brown v. Board of Education decision. Following the judicial dismantling of racial segregation, the Court turned to the treatment of Communists. Beginning in 1957, it overturned their convictions on the premise that Congress was wrong to regard Communism as a threat to the constitution. In 1962 the Court banned prayers and Bible reading in the public schools. In 1964 it ordered the states to redraw their legislative districts according to the strict rule of "one person, one vote." U. S. District Judges have felt obligated in several states, including Tennessee, to draw the district boundaries following each decennial census to satisfy this standard. In the past state legislatures redrew the boundaries. In the 1960s, the Supreme Court dramatically altered municipal police procedures by requiring that police officers warn all suspects of their right to remain silent before questioning them. The Court also held that states must provide lawyers free-of-charge to all indigent criminal suspects and defendants.
In 1973 the Court in Roe v. Wade struck down the state criminal code provisions prohibiting abortion. In the 1980s, the Court ruled that protestors had a constitutional right to burn the American flag, striking down both state and federal laws designed to protect the flag from desecration. In 1990 the Court ruled that patronage was a violation of government employees' freedom of association. City, county and state elected officials can no longer reward their supporters with jobs in the public sector if giving a job to a supporter requires dismissing an incumbent employee. This decision further demoralized our already weak political parties.
Finally, in 1997 the Court struck down the Communications Decency Act, enacted by Congress to remove pornography from the Internet. The decision followed a long series of cases beginning in 1957 in which the Court has extended the protection of the Fist Amendment to obscene speech and conduct.
The result of all these decisions has been the creation of a permissive, secular and egalitarian society, very different from the one the Court of Chief Justice Earl Warren inherited in 1953. We can truly say that the America we know today has been shaped in decisive ways by the judicial hand.
The most serious civil rights issue facing the courts today is homosexuality. In 1996 the Supreme Court of Hawaii in Baehr v. Lewin held that homosexuals have a right under the state constitution to marry. The implications of this decision are enormous. Article IV of the federal constitution requires each state to give "full faith and credit" to the judicial decisions of other states. In response to this threat to the family, several state legislatures, including that of Tennessee, and the U. S. Congress have enacted laws limiting marriage to persons of different sexes. It is not known whether the federal courts, however, will invalidate these laws on federal constitutional grounds.
The Hawaii legislature, appalled at the state supreme court's activism, proposed a constitutional amendment intended to overturn the court's decision. The proposal goes before the voters of Hawaii in November 1998 and is expected to pass.
In addition to amending the state constitution how can states like Hawaii and Tennessee respond to such egregious acts of judicial tyranny? Because most state judges are elected, the voters can simply refuse to re-elect activist judges. In states that use the Missouri Plan, judges must appear periodically before the voters for retention. Both California and Tennessee voters have failed to retain state supreme court justices opposed to capital punishment.
Constitutional amendments, although difficult to bring about, are a tool available to the U. S. Congress as well. In the 1890s Congress proposed an amendment to overturn a decision of the federal Supreme Court invalidating the income tax. After ratification by 3/4 of the state legislatures, the proposal became the 16th Amendment to the Constitution. President Ronald Reagan asked Congress to propose amendments to overturn the Court's school prayer and abortion decisions, but to no avail.
Impeachment of justices is an option. President Thomas Jefferson persuaded the House of Representatives to impeach Supreme Court Justice Samuel Chase in 1804, but the Senate refused to convict. Jefferson bitterly described impeachment of judges as "a scarecrow." No Supreme Court justice has been impeached since.
Congress can alter the number of justices on the Court to give the President more influence. Congress enlarged the Court from 9 to 10 in 1864 in order to give Lincoln more influence on a Court dominated by Southerners. However, when Roosevelt asked Congress to create 5 new justiceships on the Supreme Court so that he could save the New Deal, Congress refused. By 1937 it was clear that 9 justices had become an unassailable constitutional tradition.
In 1867 Congress removed Reconstruction from the Supreme Court's jurisdiction, rightly fearing that the Court would strike down the measures designed to punish the South. The Court acquiesced in this court curbing measure in ex parte McCardle. In the 1980s, however, several law professors at some of the country's most prestigious law schools developed a theory of judicial power known as the "essential functions" doctrine. Under this doctrine, the Court would be justified in finding unconstitutional any congressional attempt to alter the federal judiciary's jurisdiction on the grounds that protecting the rights of individuals is an essential function of the federal courts. President Reagan also asked the Congress to remove abortion and school prayer from the Supreme Court's jurisdiction, but again to no avail.
Presidents nominate justices to the Supreme Court, but they must be confirmed by the Senate. The Senate conducts an investigation of the qualifications of each nominee and then holds a public hearing on the nominee's qualifications. In 1988 the Senate refused to confirm Robert Bork, President Reagan's nominee to the Supreme Court. The experience of most presidents, however, including that of Dwight Eisenhower, Richard Nixon, Ronald Reagan and George Bush, is that lawyers and judges whom the president and his advisors believe to be advocates of judicial restraint often turn out to be judicial activists once they are placed on the Supreme Court and given life tenure. It is said that selection of a Supreme Court justice is a thankless job for a president. With every nomination, he makes 9 enemies and 1 ingrate.
In conclusion, let me say that Alexander Hamilton's statement in Federalist #78 that the judiciary is "the least dangerous branch" is no longer true. Hamilton pointed out that the Congress exercises will by making laws and commands the public purse through the taxing and spending powers. The courts, he said, possess merely the power of judgment in disputes between individual parties. As we have seen, the reality in the United States in 1998 is that the courts, at both the state and federal level, make law, raise taxes and force governments to spend revenue in accordance with the judiciary's priorities. It is accurate to say that the United States is indeed a nation ruled by judges.