Ends v. Means: Why Judicial Restraint Is a Good Thing

Overview of the Court’s Role:

Interpretation of the constitution is one of the primary roles of the SCOTUS.  Interpretation which is not restrained tends to result in judges that invent laws rather than interpret them.  Regardless of what side of the political spectrum you are on, and regardless of the case in question, a strict and narrow reading of the constitution is something on which we should all agree.  When the court gives itself the authority to bend the constitution into meaning something that it does not say, what the court is really doing is substituting the views of nine justices for the votes of the millions of people who may have determined otherwise.  The SCOTUS has an extraordinary authority to step in and stop the federal or state governments from violating the constitution.  SCOTUS is a check on the power of the executive and legislative branches of government.  This power should be used as a last defense against government overreach, it should not be used to create new laws – that is the job of the state legislatures and congress.  When the court uses its authority to control another branch of government without a clear basis in the constitution, the court is overstepping its authority which should be confined by the actual text of the constitution; not what anyone wishes it says.

When polls are cited as justification for why the court should decide a certain way such as those indicating that a large majority of the public support a given position, that is a clear indicator of profound public misunderstanding.  The Supreme Court is not supposed to decide that the constitution says what a majority of the people believe.  Legislators should be drafting laws based on what the majority of people want; judges have no business in creating laws and thus the only thing a court should be permitted to interpret is the laws written and passed by the people’s representatives.  The constitution is supposed to remain a relatively fixed and universal protection against government misconduct.  When a court bends the constitution to fit the majority’s desires, it can lead to dangerous outcomes.  This is particularly true when the majority has a perspective that infringes on the rights of a minority group.

See the Forest, Not Just the Trees:

Historically the court has taken power that did not belong to it and in doing so it created laws that substitute the judgment of the justices for the judgment of the people.  That is dangerous and any action to curtail this power grab should be welcomed by all Americans.

Below is a highly simplified synopsis of several occasions on which the court overstepped the authority it has under the constitution: (more on these in future articles):

Korematsu – The supreme court found that the constitution did not prohibit the imprisonment without due process of a huge number of people during WW2.  This was clearly unlawful and unconstitutional, but the supreme court let it stand because it was the popular thing to do at the time.  An honest reading of the constitution would have prohibited this injustice.  Instead, the court invented a doctrine that allows for the government to violate the constitution in war time.

Espionage / Free Speech – allowed egregious violations of people’s first amendment rights to free speech, free association and freedom of the press by classifying political speech in opposition to those in power at the time as unprotected espionage.  Essentially the court invented a principle under which the first amendment doesn’t apply in war times. This was used to blackball alleged communists, anti-war protestors, and other “agitators.”

Fourth Amendment / Third Party Doctrine: The fourth amendment was implemented to ensure that government could not search or seize persons, things or papers without a warrant based upon probable cause and issued after review by a judge.  SCOTUS has invented and expanded numerous exceptions by pretending in rulings that certain searches will not be defined as a “search” for the purposes of this amendment and by the creation of doctrines such as the “Third Party Doctrine.”  This essentially means that all information (which belongs to you or is about you) held by another party can be searched or seized without a warrant.  (i.e. the government can simply tell Google to send over all of your photos in your online storage account, all of your emails, all of your location data and more without a warrant). Additional exceptions have been created when someone else, say a visitor staying at your home, invites police in to conduct a search. This is considered to be your consent even if you did not consent because the person who opened the door had apparent authority.  Exceptions have been invented for automobiles based on the idea that they are movable and therefore should have a lower barrier to searches.  The drafters of the constitution did not include such exceptions – these were invented by the SCOTUS and violate the constitution because SCOTUS does not have the authority to re-write the constitution.  Numerous people have been wrongly imprisoned by the bending of this amendment.

Qualified Immunity – This is a court invented rule, which is nowhere in the constitution, which has been used to override a law passed by congress designed to allow citizens to hold government actors responsible when they violate a citizen’s constitutional rights.  This invented rule is a strong example of nine justices overriding the votes (through congressional representatives) of every American.

Congress acknowledged that an effective means of holding government actors, such as police officers, accountable when they violate a citizen’s rights is to allow that citizen to bring suit against the officer.  Congress passed a bill and the president signed it into law.  This became 42 U.S.C. 1983.  This was intended to provide a substantial deterrent to those who may be in a position to violate civil rights by ensuring that there were consequences.  The court, in a series of cases to be discussed in future articles, invented and upheld the doctrine of Qualified Immunity which excuses a police officer or other government official when they violate someone’s constitutional rights.  Qualified Immunity was initially designed to shield an officer who violated a right which was not yet “clearly established.”  That statement on its surface, sounds reasonable (not that reasonability should matter – the court should not substitute its judgment for that of the people without clear constitutional provisions).  In practice this principle of clearly established has morphed into a nearly impenetrable barrier which protect government actors from being held liable by the citizens for whom they work. This immunity has been upheld even in egregious cases where no person with common sense would believe it was not a violation of rights due to a court invented technical definition that requires essentially identical facts in a prior case in order to qualify a right as “clearly established”.  The Court has even admitted that Section 1983 provides no immunity... yet it still unlawfully granted itself the power to override the votes of the people's congress.

Qualified Immunity is an example of why the court should be constrained to interpreting the constitution rather than pretending it is a legislature.  The constitution does not grant the court authority to override duly passed laws of the congress unless those laws violating the constitution.  A law holding a government agent liable for his or her violations of a citizens rights couldn’t be more permissible under the constitution.  The constitution is a document whose primary purpose is to hold the government accountable and restrict its violations of citizen’s rights.  The current pattern of protests over alleged police misconduct is largely fueled by the unaccountability police created by this court invented doctrine.

Thoughts on How to Push Policy Forward Correctly:

A restrained SCOTUS is a good thing for our democracy and the current court seems to agree.  People on both sides of recent controversial rulings should at least be able to see the benefits of this self-restraint.  It will cause a few short-term disruptions in what is perceived as normal, but this is the path back to a proper reading of the constitution and a restoration of the power to draft laws to the people’s representatives where such power properly resides.  If you don’t like the laws, push to change them, but don’t misinterpret the constitution to pretend it says something it does not say.  That removal of boundaries can lead to substantial abuses.

Actions often have unexpected and unintended consequences.  If we want to push policies forward the correct way and preserve our democratic republic and the individual liberties we cherish, we need to focus on how progress is made, not just accept “progress” through any means.  By using the wrong tool for what we see as good today, we open the door for that tool to be misused for another potentially harmful purpose in the future.

Advocates for abortion rights are free to lobby for the passage of laws that create a right statutorily in their state.  Many states already have such laws.  This is the proper way for the people’s will to be executed, not by bullying the court into misinterpreting the constitution through the lens of popular opinion.  Stability in our form of government is more important than any one policy issue and if we can agree on that, perhaps we can hold the republic together and keep this American experiment afloat.