Judicial Accountability

At the meeting of the Moral Reasoning Group at Saint John Fisher Church last night, we completed our study of First Amendment issues guided by the lectures of Notre Dame law professor Gerard Bradley. In his last lecture "Reining in the Courts," Bradley notes the harm done to society by Supreme Court rulings in the areas of freedom of religion, abortion and many others and asks: "Is there anything we can do to rein in the activist courts?"

Bradley sees two possible approaches: (1) Appoint better judges, and (2) Amend the Constitution or rule some issues out of the court's jurisdiction. His outlook was decidedly pessimistic in 1997 when the lectures were taped. As for appointing better judges he points to the disappointment of constitutional constructionists associated with the decisions of Justices Stevens, Souter and Kennedy and the appointment of activists Ginsburg and Breyer. As for amending the Constitution, Bradley believes that any amendment would be difficult to achieve as it would be opposed by claims of judicial independence.

The view was pretty grim when Bradley gave these lectures in 1997. Now, however, we have Chief Justice John Roberts and Justice Samuel Alito. With one more replacement the Supreme Court could be in position to reverse many bad decisions. In fact, the Court is already decidedly conservative. Newsmax Magazine recently published a comparison of judicial agreement, with the benchmark being Justices Scalia and Thomas who agreed on 92% of Supreme Court decisions from October, 2004 through June, 2005. The results are revealing.

Antonin Scalia.......... 92%

Clarence Thomas....... 92%

William Rehnquist...... 90%... replaced by John Roberts

Anthony Kennedy...... 83.5%

Sandra Day O'Connor... 80% ... replaced by Sam Alito

David Souter............ 64.5%

Steven Breyer........... 63%

Ruth Bader Ginzberg.... 62%.... replaced by?

John Paul Stevens....... 55%.... replaced by?

On the average, the nine justices agreed on decisions 76% of the time. Since the benchmark is provided by Scalia/Thomas, I'd say the average jurist was in the right 76% of the time. Now look what an improvement there will be when Ginsberg and Stevens are replaced by jurists who believe in interpreting the Constitution as it was written.

Finally, note that there is now a Congressional committee dedicated to rein in judicial overreach. In the latest issue of The American Enterprise, House member Todd Akin explains that Congress and the President "have allowed the judicial branch to run unchallenged for too long, to the detriment of our liberty." Akin points to Article III Section 2 of the Constitution as a tool that can be used to remedy the present imbalance. The pertinernt passage is this: "The Supreme Court shall have appellate Jurisdiction both as to Law and to Fact, with such Exemptions, and under such Regulations as the Congress shall make."

There is a movement afoot to reinvigorate the balance of power among the three branches of government led by the House Judicial Accountability Working Group. We should send them our encouragement.