SUPREME CONSEQUENCES. How a President's Bad Judicial Appointments Threaten Your Liberty. SUPREME CONSEQUENCES i

Transcription

1 SUPREME CONSEQUENCES How a President's Bad Judicial Appointments Threaten Your Liberty SUPREME CONSEQUENCES i

2 TABLE OF CONTENTS The Federal Judiciary: No Longer the "Least Dangerous Branch"... 2 Fast Facts About the Supreme Court... 4 Seats on the Supreme Court... 6 Supreme Court Justices' Tenure... 8 The Road to Confirmation...10 Confirmation Odds & Ends What Makes a Good or Bad Judge?...14 Why Every Vote Matters A Closer Look at the Lower Courts Resources to Learn More ii THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 1

3 THE FEDERAL JUDICIARY: NO LONGER THE "LEAST DANGEROUS BRANCH" Our Founding Fathers recognized that too much power accumulated in one branch of government is a significant threat to liberty. They sought to avoid this by separating power among the three branches of the federal government and between the federal government and the sovereign states. This system of checks and balances would prompt ambition to counteract ambition. Our constitutional system relies on this separation of powers to limit the ability of any one branch to encroach upon the prerogatives of the other branches, helping preserve our liberty against any monopoly of governmental power. While the courts have the duty to say what the law is in a case properly before them, the other branches of government have an independent obligation to uphold the Constitution. Although the Framers of the Constitution envisioned that the judiciary would be the least dangerous branch, it has transformed itself into a policymaking body that wields wideranging power over virtually every aspect of American life. The Supreme Court has grabbed power by declaring that its decisions are the supreme law of the land, and the other branches have largely acceded to these claims. Judges engage in judicial activism when they write subjective policy preferences into the law instead of applying the law impartially according to its original meaning. Examples of Supreme Court Power Grabs Usurping national security authority, the Supreme Court extended the right of habeas corpus to the Guantanamo Bay detainees in Boumediene v. Bush. In Kelo v. City of New London, the Supreme Court interpreted the Takings Clause of the Constitution to allow the government to seize citizens homes not to build a road or fulfill some other public use as is required by the Fifth Amendment, but to transfer the property to a private corporation because it could pay more taxes. The Supreme Court instituted one of the largest tax increases in history in National Federation of Independent Business v. Sebelius when it strained the Affordable Care Act s text to uphold the individual health care mandate as a valid exercise of s taxing power. In recognizing a constitutional right to marriage that includes same-sex couples in Obergefell v. Hodges, the Supreme Court issued a decision so unmoored from the text of the Constitution that even supporters of the ruling have described it as unintelligible and poorly reasoned. The first step in curbing the judiciary s excesses is for the President to nominate and the Senate to confirm individuals with a proper understanding of the limited role of the judiciary. The President s choices will have a big impact on the judiciary because he or she will likely have the opportunity to nominate Supreme Court justices and roughly one-third of federal district court and appeals court judges. The President should nominate individuals whose records demonstrate that they will apply the Constitution and laws according to their original public meaning. Senators should rigorously question nominees about their judicial philosophy and examine their records, and then vote to confirm only nominees who understand the proper limited role of the judiciary. DID YOU KNOW? When judges rely on the so-called Living Constitution to make the text comport with what they see as the spirit of the times, they exceed their authority to interpret the Constitution. One example is the doctrine of evolving standards, whereby a court looks to the national consensus of states to decide whether a practice violates the Constitution. 2 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 3

4 FAST FACTS ABOUT THE SUPREME COURT To date, the Court has issued more than 30,000 opinions. The judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment. Federalist No. 78, Alexander Hamilton Only 4 Andrew Johnson Presidents failed to appoint a single justice to the Supreme Court: William Henry Harrison Zachary Taylor Jimmy Carter OCT NOV DEC JAN FEB MAR APR MAY JUN OCT NOV DEC JAN FEB MAR APR The Supreme Court s term runs from the first Monday in October through the end of June. The justices hear oral arguments from October to April and issue opinions from around Thanksgiving through the end of June. George Washington appointed 11 justices over the course of his presidency including the recess appointment of John Rutledge as Chief Justice, whom the Senate rejected. Andrew Jackson appointed 6 justices including Chief Justice Roger Taney, author of the infamous Dred Scott v. Sandford decision. The Court agrees to hear roughly 70 cases from an average of 7,000 petitions it receives each term. Franklin Delano Roosevelt appointed 8 justices and elevated one to Chief Justice. William Howard Taft is the Only President to be appointed to the Court. He became Chief Justice eight years after his presidency. 4 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 5

5 SEATS ON THE SUPREME COURT passes the Judiciary Act, setting the number at six justices, including one Chief Justice. reduces the number of seats to five. This may have been intended to prevent the incumbent President, Thomas Jefferson, from making an appointment. restores the sixth seat. increases the number to seven justices. increases the number to nine justices increases the number to 10 justices to secure a pro- Union majority Following the Civil War, decreases the number to seven justices to prevent Andrew Johnson from making any appointments. increases the number to nine justices, where it has stayed. DID YOU KNOW? In 1937, in an attempt to oust the Four Horsemen conservative justices who opposed the New Deal agenda Franklin Delano Roosevelt tries to persuade to allow the appointment of an additional justice for every sitting justice who chooses not to retire upon turning 70, with a maximum of six extra justices. The measure fails in the Senate. Today, there are nine seats on the Supreme Court, but that was not always the case. Here s a look at how the number of justices has varied over the years. 6 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 7

6 SUPREME COURT JUSTICES' TENURE DID YOU KNOW? John Roberts (Bush, 2005) Tenure: 10 Years Age: 61 Ruth Bader Ginsburg (Clinton, 1993) Tenure: 23 Years Age: 83 CURRENT SUPREME COURT JUSTICES Anthony Kennedy (Reagan, 1988) Tenure: 28 Years Age: 80 Stephen Breyer (Clinton, 1994) Tenure: 22 Years Age: 78 Clarence Thomas (Bush, 1991) Tenure: 24 Years Age: 68 Samuel Alito (Bush, 2006) Tenure: 10 Years Age: 66? Shortest Term 1 YEAR, 18 days John Rutledge, Longest Term 36 YEARS, 209 days William O. Douglas, Average length of justice s term Many early Supreme Court justices resigned from the Court to take positions they viewed as more prestigious. For example, in 1791, John Rutledge left the Court to serve on a South Carolina state court; our first Chief Justice, John Jay, ran for governor of New York twice during his tenure on the Court and left in 1795 when he was elected; and David Davis left the Court in 1877 after 15 years to become a U.S. Senator for Illinois. Until the late 1800s, the justices were required to travel around a circuit of courts to hear appellate cases. This schedule and the harsh travel conditions made the job unappealing to many leading lawyers of the time. Today, an appointment to the Supreme Court is typically the capstone of a long legal career, and justices serve until they are ready to retire altogether or until their deaths. Sonia Sotomayor (Obama, 2009) Tenure: 7 Years Age: 62 Elena Kagan (Obama, 2010) Tenure: 6 Years Age: 56 To Be Determined With the passing of Justice Antonin Scalia at age 79, this seat is currently vacant. Appointed by President Ronald Reagan in 1986, Scalia served on the Supreme Court for nearly 30 years. 16 YEARS Source: Supreme Court of the United States, Frequently Asked Questions: Supreme Court Justices, faq_justices.aspx#faqjustice4. *Data current as of summer THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 9

7 THE ROAD TO CONFIRMATION VACANCY OCCURS START 5 SENATE JUDICIARY COMMITTEE CONSIDERS NOMINATION 1 ABA RATING The American Bar Association s Standing Committee on the Federal Judiciary rates nominees from not qualified to well qualified. Nine Presidents have solicited these ratings before selecting nominees, but some have expressed concern about the ABA s liberal bias. 4 BLUE SLIP The chairman of the Senate Judiciary Committee sends letters to Senators from the nominee s home state soliciting their opinions as to the nominee s qualifications. This informal practice is not part of the Senate s rules, but it has been used in some form since A nominee submits answers to a detailed questionnaire discussing employment history, associations and memberships, published writings and speeches, and prior judicial office and summaries of significant cases (if applicable). Then the committee holds a hearing to ask the nominee questions about his or her record, judicial philosophy, writings, and other relevant information. Sometimes witnesses will present testimony about a nominee. For nominees who have served on a lower court, Senators should ask the nominee to explain any controversial rulings. 8 PRESIDENT SIGNS JUDGE S COMMISSION AND JUDGE IS SWORN IN 7 2 PRESIDENT MAKES NOMINATION SENATE S DUTY TO ADVISE AND CONSENT BEGINS The Senate s duty to advise and consent does not mean rubber-stamping nominees. Traditional deference to the President s choices does not mean that nominees who would be bad judges should be confirmed. 6 COMMITTEE VOTES TO REPORT NOMINEE TO THE FULL SENATE DEBATE AND VOTE Once a nominee reaches the full Senate, Senators may debate whether or not to confirm. Then they go through the process of voting to confirm or reject the nomination. POSSIBLE ROADBLOCKS TO CONFIRMATION SCRUTINY The media scrutinize a nominee s work history, affiliations, and personal life. During the Senate vetting of Supreme Court nominee Robert Bork, journalists dug through his trashcans and visited his video rental store hoping to uncover juicy details about his personal life. FILIBUSTER Senators can try to block a nominee s confirmation by using this procedural maneuver. In 1968, such a method was used to prevent Associate Justice Abe Fortas from being elevated to Chief Justice. SPECIAL INTERESTS Special-interest groups try to extract assurances that nominees will rule in favor of their causes once confirmed. NARAL Pro- Choice America urged Senators to ask Sonia Sotomayor about her views on the Court s abortion cases before she was confirmed. 10 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 11

8 "[A] jurisprudence based on first principles is neither conservative nor liberal, neither right nor left. It is a jurisprudence that cares about committing and limiting to each organ of government the proper ambit of its responsibilities. It is a jurisprudence faithful to our Constitution." Edwin Meese III, 75th U.S. Attorney General "[T]he highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law." Justice Felix Frankfurter CONFIRMATION ODDS & ENDS What happens if a vacancy occurs during a presidential election year? Supreme Court vacancies in presidential election years are rare. The last time a nominee was confirmed to a seat that opened up during a presidential election year was in Republican President Herbert Hoover nominated Benjamin Cardozo on February 15, 1932, and the Republican-controlled Senate confirmed him on February 24. The last confirmation when the President was not from the same party as the Senate majority occurred in 1888 when Democratic President Grover Cleveland nominated and the Republican Senate confirmed Melville Fuller as Chief Justice. A current member of the Supreme Court, Justice Anthony Kennedy, was confirmed in a presidential election year (1988), but the vacancy that he filled arose in the previous year and was held over because the Senate defeated the first person nominated to that seat. Can the President make recess appointments to the Supreme Court? The Constitution permits the President to fill a judiciary vacancy with a temporary appointment when the Senate is in recess. Past Presidents, including George Washington and Dwight Eisenhower, made recess appointments to the Supreme Court. These temporary appointments last until the end of the Senate s next session. There have been nine recess appointments to the Supreme Court. The Supreme Court determined in Noel Canning v. National Labor Relations Board that the Senate alone determines when it is in recess and that a recess lasting less than 10 days is presumptively too short to allow the President to make a recess appointment. When the Senate breaks for the evening, this is not an opportunity for the President to make a recess appointment. *A nomination to the Supreme Court is pending as of publication. Does the Senate have a duty to confirm? Though the Constitution says the President shall nominate justices, the Senate s obligation to provide advice and consent is not fleshed out. The Senate is free to withhold its consent and is not obligated to hold hearings or votes. To date, the Senate has confirmed 124 of 161 nominations to the Supreme Court. Of the 36* who were not confirmed, 25 were never voted on by the Senate. This includes six nominees who were later confirmed, such as John Roberts who was first nominated to be an associate justice replacing Sandra Day O Connor but subsequently was nominated to be Chief Justice after William Rehnquist passed away. Source: Josh Blackman, Nominations to Supreme Court in Election Year with Divided and unified Governments, February 13, 2016, Source: Barry J. McMillion, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, ional Research Service Report, October 19, 2015, 12 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 13

9 WHAT MAKES A GOOD JUDGE? A good judge is committed to faithfully applying the Constitution and statutes by relying on their original public meaning, understands that a judge s role is limited, and does not issue outcome-oriented decisions. WHAT MAKES A BAD JUDGE? A bad judge interjects subjective policy preferences into the law, strains the text to achieve desired ends, elevates personal sympathy for particular litigants above the requirements of the law, turns to international law to justify a preferred outcome, and reads new rights into the Constitution that are not grounded in the text. FAITHFUL TEXTUALIST ORIGINALIST IMPARTIAL PLAYS LAWMAKER BIASED LIVING CONSTITUTION OBJECTIVE INVENTS RIGHTS CONTORTS TEXT PRINCIPLES OVER POLITICS RESTRAINED PICKS FAVORITES END JUSTIFIES MEANS [U]nless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite. RONALD REAGAN In truly difficult cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one s deepest values, one s core concerns, one s broader perspectives on how the world works, and the depth and breadth of one s empathy." BARACK OBAMA 14 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 15

10 WHY EVERY VOTE MATTERS Every vote matters in cases before the Supreme Court. Often, big cases are decided by just one vote. While the justices agree in many cases, it s important for a President who is nominating a justice to consider that this one person could make a big difference in nearly a quarter of the cases each term. Here's a look at the breakdown of votes over the past 10 years: Consider some of the important cases in the past 10 years where one justice was the deciding vote: LOSSES KELO v. CITY OF NEW LONDON (property rights and eminent domain) WINS MCDONALD v. CITY OF CHICAGO and D.C. v. HELLER (gun rights) DECISIONS BY VOTE COUNT OBERGEFELL v. HODGES (creating a right to same-sex marriage) TOWN OF GREECE v. GALLOWAY and BURWELL v. HOBBY LOBBY (religious freedom) Unanimous Decision 5-4 Decisions 6-3 Decisions 7-2 Decisions 8-1 Decisions NFIB v. SEBELIUS (Obamacare and 's commerce power) ARIZONA STATE LEGISLATURE v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION (rewriting plain text for political purposes) CITIZENS UNITED v. FEC and MCCUTCHEON v. FEC (political speech and campaign contributions) RICCI v. DESTEFANO and PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1 (racial preferences and equality under law) BOUMEDIENE v. BUSH (extending due process rights to detainees at Guantanamo Bay) GONZALES v. CARHART (partial-birth abortion ban) Judges have no business creating new, special rights for individuals or groups that are not in the Constitution. The only way to create new rights is to amend the Constitution as we have done to meet society s needs several times in our nation s history. MASSACHUSETTS v. EPA (agency can regulate greenhouse gases) SHELBY COUNTY v. HOLDER (voting rights) 16 THE HERITAGE FOUNDATION SUPREME CONSEQUENSES 17

11 A CLOSER LOOK AT WHO CONTROLS THE APPELLATE COURTS? THE LOWER COURTS 1 It s not just the Supreme Court that matters when it comes to judicial nominations. Many cases never reach the Supreme Court, so it s important that the President also selects good judges for the federal district and appellate courts. 94 federal district courts with 670 judges 13 courts of appeals with179 judges Number of cases filed Number of appeals filed in federal district court in federal appellate courts in 2014: in 2014: 55, ,525 DID YOU KNOW? The Constitution grants courts the power to interpret laws and government actions in appropriate cases to determine whether they are constitutional. No court, not even the Supreme Court, is authorized to make or change the law. D.C. CIRCUIT SUPREME COURT FEDERAL CIRCUIT The federal judiciary includes 13 courts of appeals. There are 12 geographically based circuits, which are the First through Eleventh Circuits and the D.C. Circuit. There is one subject-matter based court, the Federal Circuit, which hears appeals involving patents, trademarks, and government contracts, among others. Currently, Democrat appointees dominate nine of these 13 appellate courts, and the Supreme Court is evenly split between Republican and Democrat appointees. PERCENTAGE OF JUDGES BY PRESIDENTS' PARTY 100% 80% 67% 50% 58-62% 67% 72% 100% Source: United States Courts, Statistics and Reports, Federal Judicial Caseload Statistics 2014, 18 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 19

12 Abstract The Heritage Foundation Washington, DC Abstract Abstract The Heritage Foundation Washington, DC (202) heritage.org The Heritage Foundation Washington, DC (202) heritage.org No No The Heritage Foundation Washington, DC constitutional law. results. results. outcome. ity to the law. The Heritage Foundation Washington, DC (202) heritage.org constitutional law. results. The Heritage Foundation Washington, DC (202) heritage.org constitutional law. judicial power. judicial power. n It is easy to find a possible No. 96 JuNe 13, 2013 judicial power. n It is easy to find a possible the Executive. outcome. ity to the law. case. construed and applied in a given case. n It is easy to find a possible the Executive. Carter 1 Clinton 38 WHICH PRESIDENT'S APPOINTMENTS DOMINATE THE APPELLATE COURTS? Total=93 Total=77 Ford 1 Reagan 15 G. Bush 9 What Is the Proper Role of the Courts? By Robert Alt The Heritage Foundation Originalism: A Quarter Century of Debate By The Federalist Society Heritage Action for America: Will You Vote for Obama's Reckless Supreme Court? Obama 54 G.W. Bush 52 How to Spot Judicial Activism: Three Recent Examples By Elizabeth Slattery The Heritage Foundation Democrat Republican Keeping a Republic: Overcoming the Corrupted Judiciary Keeping a Republic: Overcoming the Corrupted Judiciary Keeping a Republic: Overcoming the Corrupted Judiciary Abstract: America, beginning about 50 years ago, has steadily become less of a republic, and there will always be those who prefer the victory of their interests to republican Abstract: America, processes. The problem is both political and intellectual, and so must beginning the about solution. 50 Almost years ago, regardless has of the outcome less of of the a republic, intellectual and there struggle, will however, always bethere remains steadily become those who prefer the the political victory battle of their to nominate interests to and republican confirm justices and processes. The judges problem who is spurn both activism political as and illegitimate intellectual, and will be guided the instead about solution. 50 by years the Almost original ago, regardless has understanding of the of out- the principles of Abstract: America, and so beginning must steadily become less come of of a republic, the intellectual the Constitution. and there struggle, will This always however, may be be the there more remains difficult task. Many those who prefer the political victory of battle politicians, their to interests nominate and to the republican and activist confirm groups justices of the and Left which they processes. The problem judges who is both spurn serve political activism in these and as matters, illegitimate intellectual, have and no interest will be in guided instead solution. by Almost the constitutional original regardless understanding interpretation; of the out- of they principles care only ofabout results. the legitimacy of and so must be the come of the intellectual the Constitution. struggle, The This however, appointment may be there of more remains new difficult justices task. who Many hold an originalist the political battle politicians, to nominate and philosophy and the activist confirm is therefore groups justices of necessary and the Left which for the they preservation of a judges who spurn serve activism in these as illegitimate republican matters, have form and no will of interest government. be guided instead by the constitutional original understanding interpretation; of the principles they care only of about results. in the legitimacy of the Constitution. The This appointment may be the more of new difficult justices task. who Many hold an originalist politicians, and the philosophy activist is groups therefore It of is a the necessary signal Left which honor for they to preservation be invited of to a give the first serve in these matters, republican have form no annual interest of government. Joseph in the legitimacy Story Lecture. of That is especially so constitutional interpretation; they because care only today about is the results. public unveiling of a 10-year The appointment of new justices campaign, who hold launched an originalist by Ed Meese and his team at philosophy is therefore It is necessary a signal The for honor Heritage the preservation to be Foundation, invited of ato to give restore the first the courts and republican form annual of government. Joseph the Story law to Lecture. their proper That is roles especially in American so government is the and public culture. unveiling of a 10-year because today campaign, launched There are by many Ed Meese aspects and to his this team endeavor, at but I will It is a signal The honor Heritage to be speak Foundation, invited primarily to give to about the restore first the the law courts of the and Constitution, annual Joseph the Story law Lecture. to their which That proper has is become especially roles in so American so badly deformed government is the and public culture. that Joseph because today Story unveiling and his of colleagues a 10-year would find today s Constitution, many Meese campaign, launched There by are Ed and aspects and especially his to this team the endeavor, Bill at of Rights, but I will unrecognizable. The Heritage Foundation, speak primarily That to restore about is a serious the courts law problem of and the for Constitution, the republican form of the law to their which proper has roles become in American so badly government and deformed that Joseph culture. No Delivered October 15, 2008 February 24, 2010 The Honorable Robert H. Bork This paper, in its entirety, can be found at: The Joseph Story Lectures Produced by the Center for Legal and Judicial Studies Keeping a Republic: Overcoming the Corrupted Judiciary By Judge Robert H. Bork Published by The Heritage Foundation No. 96 JuNe 13, 2013 outcome. ity to the law. case. No. 96 JuNe 13, 2013 This paper, in its entirety, can be found at: Washington, DC The Joseph Story (202) Lectures heritage.org Washington, DC The Joseph Story Lectures (202) heritage.org Produced by the Center Nothing for written Legal here and Judicial is to be Studies construed as necessarily reflecting the views of The Heritage Foundation or as an attempt Published by to The aid Heritage or hinder Foundation the passage of any bill before. Washington, DC (202) heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. RESOURCES TO LEARN MORE LEGAL MEMORANDUM LEGAL MEMORANDUM LEGAL MEMORANDUM How to Spot Judicial Activism: Three Recent Examples Elizabeth H. Slattery How to Spot Judicial Activism: Three Recent Examples Elizabeth H. Slattery The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias. Judicial activism occurs when judges decline to apply the Constitution or laws according gradually to their original abandoned public their meaning proper or role ignore of policing binding the precedent and The courts have structural limits instead on government decide cases and based neutrally on personal interpreting preference. the laws Labeling as activist a provisions decision that without fails personal to meet this bias. standard Judicial does activism not express policy and constitutional occurs when judges disagreement decline with to apply the the outcome; Constitution expresses or laws disagreement according to their abandoned original judge s public conception their proper meaning of role his or or of ignore her policing role binding the our constitutional precedent and system. Three with the The courts have gradually structural limits instead on government decide recent cases and cases based neutrally illustrate on personal interpreting how preference. our the Founding laws Labeling Fathers as activist provisions a decision without ment that of fails personal laws to and meet bias. not this of Judicial standard men is activism compromised does not express when policy judges let their sub- vision of a govern- and constitutional occurs when judges disagreement decline to jective apply with the policy outcome; Constitution preferences expresses or control laws according to their original judge s public conception meaning of or his ignore her binding role our precedent constitutional and system. Three disagreement their decisions. with the instead decide cases recent based cases on illustrate personal he preference. how role our assigned Founding Labeling to judges Fathers as activist a decision that ment fails of to laws meet and this not standard the of men Constitution is does compromised not express and lesser when policy laws, judges not let to their make sub- them. It was in vision our system of a govern- was to interpret disagreement with jective the outcome; policy preferences to it expresses protect control the disagreement integrity their decisions. of with the Constitution, the not to add to it or judge s conception of his or her role subtract in our constitutional from it certainly system. not Three to rewrite it. For as the framers recent cases illustrate how he role our assigned Founding knew, unless to Fathers judges judges vision in our are of bound system a government of laws and not of men the Constitution is compromised we will, and in fact, when lesser no judges longer laws, let not have their to a make sub- government them. It of was laws, but of men by was the to text interpret of the Constitution, jective policy preferences to protect control the their and integrity women decisions. of who the Constitution, are judges. And not if to that add happens, to it or the words of subtract from the it certainly documents not that to rewrite we think it. govern For as the us will framers be just masks for he role assigned knew, to unless judges the judges in personal our are system bound and was capricious by to the interpret text rule of the of a Constitution, small elite. the Constitution we will, and in lesser fact, no laws, longer not to have make a government them. It was of laws, but of men to protect the integrity and women of the who President Constitution, are judges. Ronald not And to Reagan if add that to happens, 1 it or the words of subtract from it certainly the documents not to that rewrite we think it. For govern as the us framers will be just masks for knew, unless judges the personal are bound and by capricious the text of rule the Constitution, of a small elite. we will, in fact, no longer have a government of laws, but of men and women who President are judges. Ronald And if that Reagan happens, 1 the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite. President Ronald Reagan 1 T How to Spot Judicial Activism: Three Recent Examples Elizabeth H. Slattery T T This paper, in its entirety, can be found at Produced by the Edwin Meese III Center for Legal and Judicial Studies This paper, in its entirety, can be found at Produced by the Edwin Nothing Meese written III Center here for is to Legal be construed and Judicial as necessarily Studies reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. This paper, in its entirety, can be found at Key Points Courts have an essential constitutional role of policing the structural limits on government and neutrally interpreting the law. Key Points Courts have an essential Judicial activism constitu- occurs when tional role of policing judges the decide structural cases based on their limits on government personal and preferences neutrally interpreting of the law. text of the Constitution, and in spite statutes and applicable precedent. tional role of policing judges the structural decide cases based on their limits on government personal and neutrally interpreting the of the law. text of the expresses Constitution, disagreement with preferences that fails and to in meet spite this standard statutes and applicable the judge s precedent. conception of his role in our constitutional system, not judges decide cases based on their policy disagreement with the personal preferences that and fails in to spite meet this standard of the text of the Constitution, expresses disagreement with statutes and applicable the judge s precedent. conception of his role in our constitutional ences system, may lead not them to uphold policy disagreement unconstitutional with the laws that they that fails to meet this standard favor or to strike down lawful ones expresses disagreement with that they oppose. In either case, the judge s conception of his role judges abdicate their duty of fidel- in our constitutional ences system, may not lead them to uphold policy disagreement unconstitutional with the laws that they favor or to strike down lawful ones that they oppose. deciding In either whether case, a law leads judges abdicate to their good duty or bad of fidel- results, but with ences may lead them to uphold whether it violates the Constitution and, if not, how it is properly unconstitutional laws that they favor or to strike down lawful ones construed and applied in a given that they oppose. In deciding either case, whether a law leads judges abdicate their to duty good of or fidel- bad results, but with Courts have an essential Judicial constitu- activism occurs when Labeling as activist a decision Judicial activism occurs when Labeling as activist a decision Judges subjective policy prefer- Judges are not charged with whether it violates the Constitution and, if not, how it is properly Judges subjective policy prefer- Judges are not charged with Produced by the Edwin Meese Nothing III written Center here for Legal is to and be construed Judicial Studies as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. (202) heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. Key Points Labeling as activist a decision Judges subjective policy prefer- Judges are not charged with construed and applied in a given deciding whether a law leads to good or bad results, but with whether it violates the Constitution and, if not, how it is properly Delivered October 15, 2008 February 24, 2010 Delivered October 15, 2008 February 24, 2010 Story and his colleagues would find today s Constitu- There are many aspects to this endeavor, but I will The Honorable Robert H. Bork The Honorable Robert H. Bork Talking Points America today is only partially a republic and, beginning about 50 years ago, has steadily become less of one. Only the originalist approach to the law is America today compatible is only partially with republican a government. and, beginning Activism about means 50 years lawlessness, ago, hasand it is rife steadily become among less many of one. judges and most professors of Only the originalist approach to the law is America today compatible is only partially with Many a republican politicians, and government. the activist groups of and, beginning Activism about 50 means years the Left lawlessness, ago, which has they and serve it is in rifethese matters, steadily become among less of one. many have judges no and interest most in professors the legitimacy of of constitutional to the interpretation; law is they care only about Only the originalist approach compatible with Many republican politicians, government. and the activist groups of Activism means the lawlessness, Left which Nominating and they it serve is rife and in these confirming matters, justices and among many judges have and no interest most judges professors in the who legitimacy will of be guided of constitutional interpretation; understanding they care of the only principles about of the Con- by the originalist Many politicians, and the activist stitution groups is therefore of essential for the preservation and these confirming of matters, republican justices government. and the Left which they Nominating serve in have no interest judges in the who legitimacy will be of guided constitutional interpretation; understanding they care of only the principles about of the Con- by the originalist stitution is therefore essential for the preservation of republican government. Nominating and confirming justices and judges who will be guided by the originalist understanding of the principles of the Constitution is therefore essential for the preservation of republican government. Talking Points Talking Points tion, and especially the Bill of Rights, unrecognizable. speak primarily about the law of the Constitution, That is a serious problem for the republican form of which has become so badly deformed that Joseph Story and his colleagues would find today s Constitution, and especially the Bill of Rights, unrecognizable. That is a serious problem for the republican form of Produced by the Nothing Center written for Legal here and is to Judicial be construed Studiesas necessarily reflecting the views of The Heritage Foundation or as an attempt Published to by aid The hinder Heritage the Foundation passage of any bill before. This paper, in its entirety, can be found at: DID YOU KNOW? Federal judges serve lifetime appointments, and a two-term President could nominate hundreds of judges to the federal judiciary. From trial-level district courts to the Supreme Court, these appointments may have a longer and more profound impact on our society and the rule of law than anything else a President may do in eight years in office. LECTURE LECTURE LECTURE Who Should Interpret Our Statutes and How It Affects Our Separation of Powers The Honorable Carlos T. Bea Abstract: Federal courts abdicate their duty to interpret statutes when they defer to executive branch agencies interpretations of statutes. It is the courts duty to say what the law is even when that law is ambiguous. The Supreme Court s reasoning in King v. burwell authorizes the feder- Abstract: Federal courts courts to find abdicate just about their duty any statute to interpret to be ambiguous, statutes when and its Chevron they defer to executive decision branch commands agencies that agencies interpretations be given of deference statutes. It to is fill those ambiguities. to say what Combining the law this is even deference when with that law King s is ambiguous. post-hoc rationalization the courts duty The Supreme Court s as a new reasoning rule of statutory in King v. interpretation, burwell authorizes we will the continue federal courts abdicate to find gerous just their about path down a dan- Abstract: Federal duty any to to erasing interpret statute our to statutes be separation ambiguous, when of and powers its Chevron and consolidating legislative that and they defer to executive decision branch commands agencies interpretations agencies judicial be power given of statutes. in deference the Executive. It is to fill Judges those ambiguities. say what Combining the law must reclaim their the courts duty to role is even in this interpreting deference when that with statutes law King s is ambiguous. so that post-hoc we are rationalization not left with the tyranny The Supreme Court s as a reasoning new rule of about in statutory King which v. burwell interpretation, our Founding authorizes Fathers we the will federal courts to find just gerous about path any to statute erasing to be our ambiguous, separation and of powers its Chevron and consolidating leg- and continue Justice down Story a dan- warned us. decision commands islative that agencies and judicial be he given power interpretation deference the Executive. to of fill statutes those Judges ambiguities. 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Burwell, the decision in the Patient Protection to interpret s administrative statutes This trend and through toward affordable deference abandonment Care act to executive agency interpretations. This undermines our system of case.1 judicial of separation of powers. It tion tends gained to decrease a Court solid foothold the That statutory is the case interpreta- where the Supreme held powers that 30 although of years ago in and the the often-cited passed a statute Chevron which limited judiciary while vesting case. I believe more power the trend in the was executive worsened and by the its many Supreme Court s opinion last term, King v. Burwell, the decision in the Patient Protection administrative subsidiaries. This trend toward and affordable abandonment Care of act judicial case.1 statutory That is the interpretation gained a solid Court foothold held 30 that years although ago in the often-cited passed Chevron a statute which limited case where the Supreme case. I believe the trend was worsened by the Supreme Court s opinion last term, King v. Burwell, the decision in the Patient Protection and affordable Care act case.1 That is the case where the Supreme Court held that although passed a statute which limited T T T DelIvereD OCTOber 21, 2015 Who Should Interpret Our Statutes and How It Affects Our Separation of Powers The Honorable Carlos T. Bea DelIvereD OCTOber 21, 2015 Who Should Interpret Our Statutes and How It Affects Our Separation of Powers The Honorable Carlos T. Bea DelIvereD OCTOber 21, 2015 This paper, in its entirety, can be found at The Joseph Story Distinguished Lectures This paper, in its entirety, can be found at The Joseph Story Distinguished Nothing written Lectures here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. This paper, in its entirety, can be found at The Joseph Story Distinguished Nothing Lectures written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. (202) heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before. No February 1, 2016 Key Points n In reviewing an agency s con- n Deferring to an agency opens n The reasoning of King v. Burwell No February 1, 2016 No February 1, 2016 Key Points struction of a statute under Chevron deference, courts determine whether that statute is silent or ambiguous with respect to the issue at hand. If so, courts struction of a statute defer under to an agency s reasonable Chevron deference, interpretation courts determine whether that statute is of the statute. silent or ambiguous with respect to the issue at hand. the door If so, for courts agencies to exercise struction of a statute defer under to an agency s reasonable Chevron deference, interpretation courts determine whether that statute is of the statute. ambiguity and pass the buck to silent or ambiguous with respect the agency to interpret the statute, but the core of the judicial to the issue at hand. the If so, door courts for agencies to exercise defer to an agency s reasonable role is interpreting a statute s interpretation of the statute. most likely meaning based on the ambiguity and pass words the that buck to wrote. the door for agencies the to agency exercise to interpret the statute, but the core of the judicial role is interpreting authorizes a statute s courts to find nearly most likely meaning any statute based on to be the ambiguous, ambiguity and pass words the buck that to and Chevron wrote. commands that the agency to interpret the statute, but the core of the judicial fill those ambiguities. As a result, agencies be given deference to role is interpreting a authorizes statute s courts the to executive, find nearly legislative, and most likely meaning any based statute on the to be judicial ambiguous, powers are combined in words that and wrote. Chevron commands that agencies be given deference to fill those ambiguities. As a result, authorizes courts to the find executive, nearly legislative, and any statute to be ambiguous, judicial powers are combined in and Chevron commands that agencies be given deference to fill those ambiguities. As a result, the executive, legislative, and judicial powers are combined in the Executive. n In reviewing an agency s con- Key Points n In reviewing an agency s con- n Deferring to an agency opens n The reasoning of King v. Burwell n Deferring to an agency opens n The reasoning of King v. Burwell Who Should Interpret Our Statutes and How It Affects Our Separation of Powers By Judge Carlos T. Bea Supreme Court Website 20 THE HERITAGE FOUNDATION SUPREME CONSEQUENCES 21

13 THE LEAST DANGEROUS BRANCH? The judiciary is often the overlooked third branch of government. Yet the judges who populate its ranks wield tremendous power to decide cases that affect the daily lives of millions of Americans. It was not always this way the Founders believed that the judiciary would be the "least dangerous branch." Over time, however, judges have inserted themselves into virtually every aspect of life, such as Americans ability to own a gun, make campaign donations to political candidates, and own a home free from government interference, among many others. Judges do not simply appear out of thin air. They are put on the federal bench by the presidents who nominate them and the senators who confirm them. Selecting judges who will be bound by the law and committed to the Constitution is not an ancillary responsibility it is a central and critical duty, with long-lasting effects. The public, too, has a role to play in shaping the courts, by electing presidents and senators who recognize the proper and limited role of judges in our government. Supreme Consequences: How a President's Bad Judicial Appointments Threaten Your Liberty reveals the proper role of judges in our government, lays out the road to confirmation for those nominated to be judges, and highlights close cases in which a single Supreme Court justice made the difference in cases of incredible significance. To view the booklet online go to: MASSACHUSETTS AVE, NE WASHINGTON, DC HERITAGE.ORG