Judicial Nullification v. Judicial Supremacy...or, Sowell doesn't get it:

And, in some respect, neither does Justice Thomas. What is it? That it's legislatures who are the prime threat to liberty; it's legislatures, NOT THE COURTS, who are most out of control branch of government and need to be reigned in.

Let me say off the bat, I have tremendous respect for both Thomas Sowell and Clarence Thomas. Regarding Sowell, a friend on a listserv once remarked that he is at his best when doing scholarly work, (and indeed, Sowell has produced a number of must read works of scholarship), but as an op-ed columnist, he comes off as an old curmudgeon with scores to settle. I agree. But his columns are still worth reading.

As regards Justice Thomas, some people who read my blogs think I'm a leftist, but if I were to match up my constitutional philosophy with those on the Supreme Court, I'd say, I'm somewhere between Justice Thomas and Justice Kennedy.

On to the topic of this discussion, Thomas Sowell has an article on a new book out about Justice Thomas.

Part of Thomas's appeal, argues Sowell, is that he resists "judicial activism" or "legislating from the bench." Sowell then goes on to describe what is wrong with legislating from the bench.

When legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on. But when judges change the law by reinterpreting it, based on the "evolving standards" of a "living constitution," nobody knows that they have violated the law until after the fact, when it is too late.

Retrospective laws are expressly forbidden by the constitution. But the "evolving standards" of a "living constitution" amount to retrospective laws by another name.

In one case, Justice Thomas said that if "I were a member of the Texas legislature," he would have voted against the law that the U.S. Supreme Court was examining. But, as a member of that court, his duty was to vote on the constitutionality of the law, whether he agreed with it or not -- and he voted that the law was constitutional.

The problem with Sowell's analysis is that much of what is called "judicial activism" looks nothing like what he's just described. In particular his assertion that "[w]hen legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on." This is one of the most laughable statements I think I've seen in a long time, shocking to see it come from the mouth of someone as intelligent as Sowell and a man with libertarian bona fides to boot. Just go to Jim Babka's and Perry Willis's Downsize DC (I promise when I reboot my template to give them a permalink) to see what a joke it is to assert that "everyone knows" what the content of the legislative law is.

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.

Regarding that Texas law to which Sowell refers, it was the sodomy law in Lawrence. A problem with the "if I were a member of the Texas legislature, I would have voted against the law," sentiment is that, by the very nature of the legislative process, it's quite easy to add a plethora of new (and mostly useless) laws every year to the record, but almost impossible to repeal old ones.

Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. A court says, perhaps after the fact, "sorry government, you can't do that." Government may respond, "well that's unfair, we were relying on our ability to make laws which forbid the sexual conduct of consenting adults behind closed doors, and now, after the fact you say we can't do this?" To which I respond with a big "BOO HOO." That's not the kind of reliance -- the reliance of majoritarian mob-rule to use the legislative process to tyrannize other segments of the population -- about which we should be concerned. Certainly not in a nation where liberty in its broad and general sense is an unalienable right that individuals possess prior to majority rule. This is why our Founders refused to enumerate the rights of man; because the rights of man are so numerous that they are unenumerable.

To quote James Wilson, a member of the Constitutional Convention: "[A] complete enumeration of rights appertaining to the people as men and citizens....Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing." Supreme Court Justice James Iredell put it this way: "Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it."

I must note, though, that courts aren't entirely innocent. They have, in the past, legislated from the bench. But when they do this, they are doing more than simply exercising judicial review and striking down a piece of legislation. This relates to the distinction between judicial review on the one hand and judicial supremacy on the other. Judicial supremacy is when the court exercises a command and control power, ordering other branches to government, or the people, to affirmative enact a particular policy or otherwise behave in a particular way. Cass Sunstein, as I understand, desires courts to behave in this manner by constitutionalizing the New Deal.

There may be some kind of relation between the principle of equality and Judicial Supremacy (whereas there clearly is a relation between judicial nullification and liberty). Although I find Equality to be a laudable and foundational ideal (along with Liberty, a twin pillar of classical liberalism), keep in mind that egalitarianism or "leveling" can result (because it has resulted) in tyranny. Therefore, Liberty must come before Equality and Property rights must also be part of the liberal ideal.

In dealing with issues of constitutional equality, courts have often jumped from judicial nullification (which is almost always a good thing), to judicial supremacy (where the court exercises a command and control quasi legislative power). I think this is what the great liberal historian Gordon Wood refers to in Justice's Scalia's book, A Matter of Interpretation, commenting on Justice Scalia's jurisprudential thesis, when he writes:

"[M]odern judges have come to exercise a degree of authority over our lives that is unparalleled among modern Western nations. During the past generation judges have taken to running school systems and prisons. For a decade or more one federal judge even took upon himself to monitor all faculty appointments at my university -- for the sake of justice, of course." p. 49.

This is a vastly different thing than simply striking down a law in the name of liberty and doing nothing else.

Finally, for a good explanation on the distinction between judicial nullification and judicial supremacy, see Randy Barnett's Restoring the Lost Constitution, pp. 143-7.