This is the sixth in an occasional series of exclusive articles in which leading conservatives who served in the Reagan Administration explain how they believe the principles of Reagan conservatism ought to be applied today and in the coming years. This week, Mark R. Levin, who served as chief of staff to Atty. Gen. Ed Meese in the Reagan Justice Department, addresses the Supreme Court.
President Ronald Reagan was a limited-government conservative who firmly believed in an originalist interpretation of the Constitution and in the representative form of government that the Constitution set up.
Unfortunately, like other Republican Presidents before and after him, Reagan’s efforts were, for the most part, stymied by the subsequent behavior of certain of his own appointees. As a consequence, the Supreme Court remains a threat to the Constitution and representative government.
Reagan did not fail for lack of trying, however. He did his best to appoint justices who shared his judicial philosophy. Over two terms, Reagan filled three vacancies and elevated conservative William Rehnquist to chief justice. He nominated the great Antonin Scalia to replace Rehnquist as an associate justice. But two Reagan appointees—Sandra Day O’Connor and Anthony Kennedy (his third choice after Robert Bork and Douglas Ginsburg)—would become huge disappointments.
When Reagan left office, the Supreme Court was still controlled by a majority of activist justices, as it is today.
I believe the Supreme Court is so broken it cannot be fixed simply by naming seemingly good candidates to the court, then hoping they vote like originalists during their life-long terms.
The Supreme Court needs to be reformed as an institution. It needs systemic solutions. Two I favor are limiting the terms of justices and giving Congress the power to veto a Supreme Court decision with a super-majority vote in both houses. Both reforms would require constitutional amendments. But it is time for conservative political leaders to start advocating them aggressively and making the case for why they are needed to the voters.
Originalists in the Reagan mold believe the federal government possesses only those powers specifically granted to it by the Constitution. Under the Constitution, the role of the courts is strictly limited. Their job is neither to make laws nor amend the Constitution but to interpret the laws and the Constitution as written, guided by the plain meaning of the words and the intent of the Framers.
“Judges are not to overturn the will of legislative majorities absent a violation of a constitutional right, as those rights were understood by the Framers,” Judge Robert Bork once explained. “[J]udges may look to the text, structure, and history of the Constitution, but are prohibited from inventing extra-constitutional rights.”
Bork himself paid a high price for fidelity to this principle, and the Reagan Administration’s experience with his nomination helps illustrate why reform of the Supreme Court itself is needed.
When Reagan nominated Bork to the Court in 1987, liberal politicians and their allies in the media and in special-interest groups targeted him for character assassination. His views were systematically mischaracterized and maligned.
Even though Bork had been a law professor at Yale and had served with distinction as a judge on the U.S. Court of Appeals for the District of Columbia, four members of an American Bar Association review panel had the audacity to rate him “not qualified” to serve on the Supreme Court.
What they really meant is that they feared Bork’s intellectual power and commitment to an originalist interpretation of the Constitution.
The liberal elite are desperate to keep the Supreme Court on their side to advance liberal policy priorities that lack the popular support to win approval from state legislatures or Congress. It was not elected lawmakers who expelled God from the public square, conferred due process rights on al Qaeda terrorists and forced states to educate illegal aliens. It was unelected justices on the Supreme Court. For decades, this is the way the American left has won its most important political battles—not at the ballot box, but in court.
Because this is so, the liberal establishment will do whatever it can to stop the confirmation of originalist justices. If it cannot stop the confirmation, it will attempt to seduce the justice into its own ranks once he is sitting on the court. As I wrote in Men in Black, President Nixon clearly understood this when he was trying to decide whether to nominate Harry Blackmun to replace Justice Abe Fortas after the Senate had rejected Nixon’s first two choices for that vacancy.
Blackmun later recalled that Nixon asked him, “What kind of woman is Mrs. Blackmun?” When Blackmun wondered what this question was getting at, Nixon said, “She will be wooed by the Georgetown crowd. Can she withstand that kind of wooing?”
Blackmun contended she could. But, later, when Blackmun was contemplating whether the Constitution protected a right to privacy that encompassed a right to abortion, Mrs. Blackmun turned out to be the best-placed lobbyist for the pro-abortion movement. As Bob Woodward and Scott Armstrong revealed in The Brethren, the justice’s wife told one of Blackmun’s pro-abortion clerks: “You and I are working on the same thing. Me at home and you at work.”
The result was Blackmun’s Roe v. Wade opinion, which took the abortion issue away from state legislatures, where it had always been, and elevated abortion to a constitutional right.
After the eventually disappointing nomination of Sandra Day O’Connor to the first Supreme Court vacancy of the Reagan presidency, the Reagan Administration developed a very good system for vetting judges. But even this system did not always succeed.
Potential Reagan nominees were not subjected to a litmus test, but they were carefully interviewed about their overall judicial philosophy. The guide for this interview was the Constitution itself. Anthony Kennedy got through the interview.
On the surface, Kennedy looked good. He was an intelligent man who had compiled a good record serving in the hostile, liberal environment of the U.S. Court of Appeals for the 9th Circuit, which is based in San Francisco. On the West Coast, Kennedy hadn’t drifted noticeably left. But in Washington, D.C., he did. He wrote the Supreme Court’s 2003 decision in Lawrence v. Texas—holding that same-sex sodomy was a protected constitutional right. As part of his reasoning, Kennedy pointed to the European Court of Human Rights view on the subject.
Kennedy’s decision in that case was a classic example of judicial activism. He started with the result he wanted, and then went looking for a basis to justify it. In the end, he manufactured one.
Senate Democrats have made it even more difficult to achieve a majority originalist court with their widespread and unconstitutional use of the filibuster. Republicans will likely need a 60-vote Senate majority, or more, which would be a very difficult accomplishment.
While I believe the Supreme Court is long overdue for systemic reform, the requirement of amending the Constitution to achieve both term limits and the legislative veto would be a very difficult task. But unless we begin making the case now, explaining the necessity of the amendments to the public, we will never solve this threat to the system and process of government enshrined in the Constitution.
Putting term limits on justices is not a radical idea. It would actually help restore the balance the Constitution envisioned between the three branches of the federal government. With term limits, the Supreme Court would remain an independent body, but they would allow for the replacement of justices on a timely basis, rather than waiting for them to die or set their own retirement date. And if justices are going to use their positions to set policy and, in essence, participate in the political process without the benefit of standing for election, there really is no reason for them to serve for life.
Giving Congress a veto over Supreme Court decisions would also help restore the balance between the court and the legislature. If it took a two-thirds majority vote in both houses to veto a decision, such vetoes would not happen often. But it does allow the people, through their elected branches, to have the last say. For example, I believe the horrendous Kelo v. New London decision, which said local governments can seize private homes and turn them over to private developers for the purpose of raising the tax base, may have garnered the bicameral two-thirds needed for a veto. Were the court to misuse the 14th Amendment to create a right to same-sex marriage, as I suspect it might, that, too, might secure the two-thirds votes necessary for a congressional veto.
There was no greater advocate of representative, constitutional government than Ronald Reagan, and no more outspoken opponent of unbridled judicial activism. If we are to preserve the Constitution as he and the framers understood it, then the Supreme Court must be reigned in through these modest reforms that also respect the independence of the court.