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Website Exclusives (2009)

Original Meaning and Judicial Restraint

An Interview with M. Edward Whelan III

Interviewed by the Editors

The University Bookman is pleased to present this exclusive online interview with M. Edward Whelan III, President of the Ethics and Public Policy Center in Washington, D.C.

Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia, has served in positions of responsibility in all three branches of the federal government. From just before the terrorist attacks of September 11, 2001, until joining EPPC in 2004, Mr. Whelan was the Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. In that capacity, he advised the White House Counsel’s Office, the Attorney General and other senior DOJ officials, and Departments and agencies throughout the executive branch on difficult and sensitive legal questions. Mr. Whelan previously served on Capitol Hill as General Counsel to the U.S. Senate Committee on the Judiciary. In addition to clerking for Justice Scalia, he was a law clerk to Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit.

What are the big issues facing the Supreme Court in the current term?

The term, which will wrap up at the end of June 2009, strikes me as a rather quiet one, with the usual assortment of cases across a broad array of issues. I don’t anticipate any genuine blockbuster rulings, though there’s certainly potential for the Court to continue to mess up areas of the law. There’s also the likelihood that that any 5–4 decision that has Stevens, Souter, Ginsburg, and Breyer in dissent will be hyped by the media.

One case that I’ve been following closely is Ricci v. DeStefano, which presents the question whether New Haven city officials violated the Title VII and equal-protection rights of city firefighters when they threw out the results of two promotional exams merely because they didn’t like the racial composition of the group of firefighters who did well on the exams. Beyond the legal questions, the case is notable because the Second Circuit panel engaged in remarkable shenanigans to bury the firefighters’ claims—and because the presiding judge on that panel was Sonia Sotomayor, who is widely viewed as a leading contender for appointment to the Supreme Court by President Obama.

I generally don’t spend a lot of my time focusing on the Court’s current caseload. In part I don’t do so because so many other folks do. But my main reason is that a myopic focus on pending cases has the unfortunate effect of obscuring the decades-long trajectory of the Court. That trajectory, which I believe to be one of steep decline into liberal judicial activism, needs to be reversed if American principles of representative government are going to be restored. Given the current composition of the Court—four living-constitutionalists who regularly engage in liberal judicial activism and a fifth, Justice Kennedy, who frequently does—any real progress is going to require the addition of some better replacements for those five. (And, given our new president, the prospect of improvement is distant.)

You have written a lot on judicial activism. What is it and why do you consider it damaging to republican government?

As I use the term, “judicial activism” on constitutional issues refers to judicial decisions that wrongly override (usually through the invention of newfangled constitutional “rights”) laws or policies that flow from the democratic processes. Judicial interpretation of the Constitution is not a mere intellectual game, and the term “judicial activism” succinctly captures the Court’s wrongful invasion of the realm of representative government and the injury that invasion inflicts on the powers of American citizens. More particularly, the term “liberal judicial activism” draws its potency from the Court’s repeated entrenchment since the 1960s of the policy preferences of the Left in the guise of constitutional rights.

Let me highlight that judicial activism is merely one category of judicial error. It’s distinct, for example, from a second category, which I call “judicial passivism”—the wrongful failure to enforce constitutional rights.

I’ll also highlight that distinguishing a judicial-activist decision from one that properly overrides a law depends in turn on what method of constitutional interpretation is proper. I think it’s a virtue, not a vice, of the term “judicial activism” that it calls attention to the underlying battle over judicial philosophy.

There are, of course, lots of folks who use the term “judicial activism” sloppily—often seemingly deliberately. (I address one example here.)

In your view, what principles should guide a judge in deciding contested constitutional cases?

I advocate two general principles: original public meaning and judicial restraint. What the principle of original public meaning means is that a provision of the Constitution is to be construed according to its objective public meaning at the time it was adopted—subject, of course, to any later amendments. (I’ve tried to illustrate the elementary common sense of this principle in this essay.)

Sometimes, though, the original public meaning won’t be clear enough to resolve a case. In that event, the principle of judicial restraint kicks in. When originalist methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments. So they must apply statutory law in those instances.

Of course, stare decisis, or adherence to precedent, also plays a role. But its role should be subordinate to the two principles that I’ve identified.

What has been the legacy of the Rehnquist court and how has the Roberts court expanded or changed that legacy?

It’s of course conventional to refer to the Court during a certain period by the name of the Chief Justice. But I don’t think that’s fair to former Chief Justice Rehnquist, and I also fear that it won’t, for some years at least, be fair to Chief Justice Roberts.

Chief Justice Rehnquist never had a working majority of justices that was broadly aligned with his jurisprudential principles, and he was in dissent in major cases. So I’m afraid that the real legacy of the Court under Chief Justice Rehnquist is that it failed to make meaningful progress in overturning the liberal judicial activist excesses of the preceding decades (most prominently, Roe v. Wade) and that it even committed lots of new excesses (on homosexual issues and national security, to cite just two of many possible examples). I don’t say this as a criticism of Chief Justice Rehnquist, whom I greatly admire. He had only one vote, and there’s only so much that he could accomplish.

Whether the “Roberts Court” will be able to make genuine progress remains to be seen. Not with the current personnel.

Do you see a problem in how the mainstream media covers the Court and constitutional issues?

Most media coverage of the Court and constitutional issues is terrible. The media typically addresses issues in crude political terms (“liberal” versus “conservative”), and it obscures the fundamental question about the proper role of the courts in a constitutional republic. It’s not common, for example, that you’ll see an accurate statement of the basic holding in Roe v. Wade—even something as simple as “the Court in Roe held that there is a constitutional right to abortion.” Instead, we’re told things like “Roe allowed abortion,” and justices are identified as “pro-choice” or “anti-abortion.”

The crude political terms are also misapplied. As I’ve explained, in any sensible political typology, justices (like Scalia and Thomas) who take the position that the Constitution is substantively neutral on the question of abortion—that the Constitution leaves it to the political processes whether or not it should be permitted or proscribed—are “moderates” on that issue. The conservative counterpart to Roe would be the position that permissive abortion laws violate the Constitution (a position that no justice has ever taken, though it’s far more defensible than Roe). More generally, the idea that Justice Kennedy, who has an extravagant conception of the judicial role and frequently exercises that conception to reach liberal judicial activist results, is any sort of “conservative” is ludicrous.

What is your favorite example of judicial overreach?

There are endless risible examples, as I illustrate in my “This Day in Liberal Judicial Activism” feature on my Bench Memos blog. But if I can substitute “leading” for “favorite,” then my answer is definitely Roe v. Wade. As I put it in my testimony before the Senate Judiciary Committee in 2005:

Roe v. Wade marks the second time in American history that the Supreme Court has invoked "substantive due process" to deny American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the Court’s infamous 1857 decision in the Dred Scott case (Dred Scott v. Sandford, 60 U.S. 393 (1857)). There, the Court held that the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, could not constitutionally be applied to persons who brought their slaves into free territory. Such a prohibition, the Court nakedly asserted, "could hardly be dignified with the name of due process." Id. at 450. Thus were discarded the efforts of the people, through their representatives, to resolve politically and peacefully the greatest moral issue of their age. Chief Justice Taney and his concurring colleagues thought that they were conclusively resolving the issue of slavery. Instead, they only made all the more inevitable the Civil War that erupted four years later.

Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.

Reasonable people of good will with differing values or with varying prudential assessments of the practical effect of protective abortion laws may come to a variety of conclusions on what abortion policy ought to be in the many diverse states of this great nation. But, I respectfully submit, it is well past time for all Americans, no matter what their views on abortion, to recognize that the Court-imposed abortion regime should be dismantled and the issue of abortion should be returned to its rightful place in the democratic political process.

Finally, tell is about the Ethics and Public Policy Center, and its primary programs.

In D.C. parlance, the Ethics and Public Policy Center is a “think tank.” EPPC’s mission is to explore how America’s founding principles and the Judeo-Christian moral tradition that underlies them ought to inform critical issues of public policy.

Our scholars generally carry out their work in two ways: through public writing (including, increasingly, blogging) and speaking and through discreet consultation with policymakers and opinion leaders. Ideally, those two sets of activities are mutually reinforcing, each giving added influence to the other.

I confess that I’m not wild about the term “think tank”, largely because it suggests airy, abstract, academic thinking far removed from the issues of the day. Our goal, rather, is to deliver impact by connecting policies to the deeper principles that ought to animate them.

Asking me about EPPC’s primary programs seems a bit like asking me who are my favorite children, except that EPPC has many more programs than I have children. But let me identify some of them, in roughly alphabetical order:

EPPC Distinguished Senior Fellow George Weigel and his Catholic Studies program continue to be a leading voice in shaping the engagement of the Catholic Church with the pressing domestic and international challenges of our day.

My program on The Constitution, the Courts, and the Culture aims to promote principles of original-meaning jurisprudence and judicial restraint and to make the case for judicial nominees who respect the proper limits of the judicial role under the Constitution.

EPPC’s Economics and Ethics program, featuring the work of John D. Mueller and James C. Capretta, works to foster policies—in areas ranging from the tax code to health care to retirement pensions—that recognize and promote the family as the central social institution of American civilization.

Our New Atlantis journal is a combined product of our programs on Bioethics and American Democracy and on Science, Technology, and Society. Now in its seventh year, the New Atlantis is recognized as the pre-eminent forum for serious reflection on the ethical, political, and philosophical questions raised by modern technology. Adam Keiper, Yuval Levin, and Christine Rosen lead our work in these areas.

Former Senator Rick Santorum’s Program to Protect America’s Freedom studies and highlights the threats to America and the West from a growing array of anti-Western forces and states, especially those fueled by jihadism.

EPPC Vice President Michael Cromartie runs our program on Religion and the Media, which educates leading journalists about issues at the intersection of religion and politics.

Outside the structure of formal programs, we also have great folks like Peter Wehner, Stanley Kurtz, James Bowman, and Colleen Carroll Campbell writing prolifically and speaking forcefully on a broad range of issues.

Thanks for agreeing to speak with the Bookman.

Posted: February 20, 2009

A culture is perennially in need of renewal. A culture does not survive and prosper merely by being taken for granted; active defense is always required, and imaginative growth, too.

Russell Kirk

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