Out of Order
By Steven G. Calabresi
Policy Review
September-October 1996, Number 79


On January 20, 1993, Bill Clinton raised his right hand and took an oath before God and the American people that he would "preserve, protect, and defend the Constitution of the United States." Now, as the next presidential election approaches, the American people are entitled to know whether he has kept his vow. Specifically, they are entitled to know something about the records being compiled in office by the men and women to whom President Clinton has granted lifetime appointments on the Supreme Court and the lower federal courts. Are Bill Clinton's judges mostly effective defenders of the Constitution, or are they legal realists who feel free to rewrite the Constitution? Are they moderate New Democrats committed to enforcing the law, or are they left-wing "political hangers-on" with a radical and unpopular agenda for social change?

To ask these questions is not to challenge judicial independence nor even the fundamental decency, on a personal level, of many of the Clinton judicial appointees. The decision that faces the American people is not whether Bill Clinton's judges should be impeached, or whether he should call on some of them to resign, or whether they should have been confirmed in the first place, or whether they are nice people or smart lawyers. The question is, "Given the president's record so far, can we expect a federal judiciary shaped by Bill Clinton to respect the Constitution and honor its role as the interpreter, and not the maker, of our laws?"

There are two major problems with Bill Clinton's judges. First, they have been unwilling to follow the Constitution in a number of very important cases. And, second, when they choose not to follow the Constitution, they have all too often replaced it with radical and unpopular left-wing social policy. In area after area, Bill Clinton's justices and judges are compiling a public "policy" record that is far to the left of the president's own public statements on similar issues. Bill Clinton may present himself to the public as a mainstream moderate, but his likable justices and judges are working quietly to impose a radical McGovernite legislative agenda on the country.

Many Clinton judges have replaced the Constitution
with radical and unpopular left-wing social policy

Bill Clinton's judicial appointments have had their biggest impact to date on the U.S. Supreme Court. With only two appointees, he has succeeded in transforming a moderately conservative Court into one that is (at best) one vote away from being an engine of radical left-wing social change. His justices are the political heirs of William J. Brennan and Thurgood Marshall, and they have gotten the better of the lightweight Republican justices imposed on Presidents Reagan and Bush by a Democratic Senate (and by liberal Republicans) after the 1987 nomination of Judge Robert H. Bork was viciously defeated. Many conservatives don't realize just how liberal Bill Clinton's two affable Ivy League justices really are. In part, this is because Justices Ruth Bader Ginsburg and Stephen Breyer are exceptionally bright and likable people. Nevertheless, in case after case they have voted for Big Government, against federalism, for a radical secular humanism that hates religion, against traditional social values, for the "rights" of pornographers and drug dealers, against private property, for racial quotas and preferences, and against the creation of a truly colorblind America.

The two Clinton justices depart from the William J. Brennan model of liberal judicial activism in only two significant ways: first, they write (or join) opinions that are more cagey and politically astute than blunderbuss opinions such as Roe v. Wade. As a result, the public is unaware of the extent to which radical left-wing policy ideas are seeping into our court opinions. Second, they do not oppose the death penalty across the board, although to some extent they resist its implementation. In every other important respect, the two Clinton justices are the children of the Warren Court, far-left ACLU judicial activists intent on writing their own radical and elite prejudices into the Constitution.

Many of Bill Clinton's lower-court judges (though not all) are equally or even more left-wing, but they have been unable so far to have much of an impact, both because they remain outnumbered and because the Reagan-Bush judges on the lower courts have turned out better in most parts of the country than have their brethren on the Supreme Court. If Bill Clinton wins a second term, however, this will change. In less than four years, he has filled about 25 percent of the seats on the federal judiciary. If re-elected to another term, he will have a chance to replace hundreds more retiring judges, and many of the federal courts of appeals will flip from Reagan-Bush to Clinton-Carter majorities. And depending on how lucky he gets, he will almost certainly name another one to three left-wing Supreme Court justices. This means that the few 5 to 4 wins that conservatives have managed recently will all become losses.

Let's look at what Bill Clinton's America will then be like, and contrast it with the America he claims to want. A good way to do this is to compare the specific policies Bill Clinton says he favors with the left-wing social policies that his judges are legislating from the bench. In doing this, we should remember that not all the Reagan-Bush appointments have turned out well, nor have all of Bill Clinton's judges turned out badly. Nonetheless, the overall pattern is quite clear.

Limited Government

"The era of big government is over" (January 23, 1996).

Or so Bill Clinton said in his last State of the Union address. Unfortunately, Justices Ginsburg and Breyer certainly have not yet been let in on the secret. Both have voted in favor of every single claim of national governmental power yet to come before them. Only a year ago, in U.S. Term Limits, Inc. v. Thornton, both Clinton justices were members of a 5 to 4 majority on the Court that struck down state-imposed term limits on Members of the U.S. Congress. As a result, the term-limit laws of 22 states, 21 of which had been adopted by the voters directly in initiatives or referenda, were declared invalid. The Clinton Justice Department filed an unusual "friend of the Court" brief to encourage this result. The fact of the matter is that Bill Clinton's Supreme Court justices killed the term-limits movement: had either of the two Clinton justices joined Justice Clarence Thomas's elegant and brilliant dissent, we would have term limits in most of the United States today.

These votes were not anomalies. In United States v. Lopez, both Clinton justices again voted for the position that the national government has unlimited power to regulate all aspects of the nation's economic, social, and cultural life. Justice Breyer wrote the main dissent for four of the nine justices and was joined by Justice Ginsburg. He paid only lip service to the idea that the U.S. Constitution limits the power of the national government in any way whatsoever. Under Justice Breyer's interpretation of the Commerce Clause, the federal government could nationalize education curricula, local law enforcement, family law, and everything else under the sun, so long as Congress could rationally think that doing so would in some attenuated way be connected to interstate commerce. Justices Breyer and Ginsburg clearly believe that the Big Government of the Great Society and the New Deal can do anything it wants to, so long as it does not violate the Bill of Rights or its "emanations and penumbras."

This past March, Justices Ginsburg and Breyer were again on the wrong side of an important federalism case. In Seminole Tribe of Florida v. Florida, they joined a strident dissent written by Justice David Souter that argued for overturning a 200-year-old understanding that state governments are protected from lawsuits in federal court by the doctrine of sovereign immunity. Casting aside years of settled understanding, Justice Souter argued that Congress should be able to authorize citizens to sue state governments without their consent -- a theory that reduces the states from a position of co-sovereignty to one of abject subordination. Chief Justice William Rehnquist won the 5 to 4 vote in Seminole Tribe with no margin to spare, and the dissenters promised in their opinions to try to overrule the case at the first opportunity.

The Big Government activism of the Clinton justices also manifests itself in "separation of powers" cases since that doctrine, like the doctrine of federalism, is for them an inconvenient restraint on the unlimited power of the national government. Justice Ginsburg was one of only two dissenters in Plaut v. Spendthrift Farm, Inc., an important case that limited Congress's power to retroactively command the federal courts to reopen final judgments in private civil actions already decided. Justice Breyer weighed in with a tepid separate concurrence in the case rather than join Justice Antonin Scalia's forceful majority opinion.

The Clinton justices are completely unwilling to enforce the Framers' written Constitution of limited powers, federalism, and checks and balances. Their idea of constitutional law begins and largely ends with a judicially dictated jurisprudence of unenumerated rights. Even the constitutionally enumerated right that protects private property from being taken without just compensation is given short shrift: Justice Ginsburg, for example, joined three other justices in dissenting from Chief Justice Rehnquist's important opinion in Dolan v. City of Tigard, which protected private property from confiscation by regulation. In that case, a municipal government was ultimately rebuffed in its attempt to force a shop owner to set aside 15 percent of her land as a public easement as a condition of receiving a building permit. Justices Ginsburg and Breyer also dissented in Missouri v. Jenkins, the Kansas City school-desegregation case. In that case, they joined an opinion that took the extraordinary position that federal judges can require local governments to raise taxes in order to fund remedial education and magnet schools.

Religious Freedoms

"[The First Amendment] does not convert our schools into religion-free zones. . . . I am deeply troubled that so many Americans feel that their faith is threatened. . . . When the First Amendment is invoked as an obstacle to private expression of religion, it is being misused. . . . Religion has a proper place in private and a proper place in public, because the public square belongs to all Americans" (July 12, 1995).

Or so said Bill Clinton in a widely reported speech at a suburban Washington, D.C.-area high school. It went unremarked at the time, however, that his two Supreme Court appointees had recently voted in Rosenberger v. University of Virginia to maintain our schools as religion-free zones. The issue in Rosenberger was whether a student activities fund, which was used to support various publications by student groups, could also be used to pay for the printing costs of Wide Awake, a Christian student newspaper. By a vote of 5 to 4, the Court said yes, over the dissenting votes of Justices Breyer and Ginsburg.

Justices Breyer and Ginsburg joined a militantly secular
tirade against any role for religion in any public institution

The opinion that they joined was a militantly secular tirade against any role for religion in any public institution. It reasoned that not a penny of public money can ever be spent on anything religious, even though public money is routinely spent in huge quantities on educational programs hostile to religion or to religiously inspired moral values. Under the ahistorical rhetoric of the dissenters in Rosenberger, it is hard to see how the courts could ever uphold government chaplains, Thanksgiving Day holidays, mottoes on our currency, school vouchers, or even tax deductions for religious organizations. The Rosenberger dissent theorizes that no government aid can ever go to any religious organization, even if the aid is equally available to comparable secular organizations.

"I personally did not believe that it was coercive to have a prayer at an outdoor sporting event or at a graduation event because I don't believe that it is coercive to people who don't participate in it" (November 14, 1994).

A nice sentiment, but one that is unfortunately not shared by Judges Theodore McKee and H. Lee Sarokin, Bill Clinton's two appointees to the U.S. Court of Appeals for the Third Circuit. In fact, Judge McKee wrote the en banc opinion for the Third Circuit in ACLU and Edward Ross v. Black Horse Pike Regional Board of Education, a decision that banned student-led graduation prayers throughout Pennsylvania, New Jersey, and Delaware. Judge McKee's radical opinion went further than the U.S. Supreme Court has ever gone in this area by outlawing student-led graduation prayers as well as prayers organized directly by a school principal. In order to do this, Judge McKee had to reject a directly "on point" holding of the U.S. Court of Appeals for the Fifth Circuit, which had upheld student-led graduation prayers in Jones v. Clear Creek Independent School District. Four Reagan-Bush judges dissented from Judge McKee's opinion, while every Democratic appointee on the Third Circuit joined it. Judge McKee's pro-ACLU advocacy was so effective with his colleagues that he even brought a number of the feebler Reagan-Bush appointees along with him. Bill Clinton's hopes that we could have graduation prayer were dashed by his own appointee. Now, to determine what our national policy will be on this issue, an increasingly anti-religious Supreme Court will soon be obliged to hear and resolve the conflict that Judge McKee has created between the Third and Fifth Circuits on this issue.

Racial Quotas and Preferences

"I say to you, I'm against quotas. I'm against discrimination" (September 21, 1995). "Today, I am directing all our agencies to comply with the Supreme Court's Adarand decision, and also to apply the four standards of fairness to all our affirmative-action programs that I have already articulated--no quotas in theory or practice; no illegal discrimination of any kind, including reverse discrimination; no preference for people who are not qualified for any job or opportunity; and as soon as a program has succeeded, it must be retired. Any program that doesn't meet these four principles must be eliminated or reformed to meet them" (July 19, 1995).

Great rhetoric but, unfortunately, there are two Clinton appointees who will not be complying with the Supreme Court's 5 to 4 decision in Adarand outlawing quotas in federal programs. Yes, that's right -- Justices Breyer and Ginsburg both dissented in that case, and Justice Ginsburg actually wrote one of the dissenting opinions. She tried to put a pro-racial-preference spin on Justice Sandra Day O'Connor's plurality opinion, and said she saw "today's opinion as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions." Translated into everyday English, Justice Ginsburg hopes to distinguish or overrule Adarand at the first opportunity.

And what, you may wonder, ws the "moderate" federal affirmative-action program in Adarand that Justices Ginsburg and Breyer were so eager to uphold? It was an explicit racial-preference program for government highway subcontractors, a preference so blatant that even many who support affirmative-action recruitment efforts in universities have condemned programs like this one. Justice Ginsburg was so enthusiastic about this particular program that she not only authored a dissenting opinion herself but also joined two other dissenting opinions: one by Justice Souter and another, even more radical, opinion by Justice John Paul Stevens. Justice Ginsburg was the only other member of the Court to join Justice Stevens's opinion, which would appear to uphold all federal racial-preference programs of any kind that are, in his opinion, well motivated.

Justices Breyer and Ginsburg have voted to uphold every
racial preference or quota that has come before them

Justices Ginsburg and Breyer's votes on the racial preference/quota issue in Adarand were not at all idiosyncratic. Rather, they form part of a pattern in which both justices have voted to uphold every racial preference or quota that has ever come before them. In particular, they have dissented in every voting-rights case involving challenges to political redistricting, decisions in which race played the predominant role. This past year, they joined the minority in the 5 to 4 decisions in Shaw v. Hunt and Bush v. Vera, in which the Court threw out racially gerrymandered congressional districts in North Carolina and Texas. Last year, Justice Ginsburg wrote the dissent for four justices (including Justice Breyer) in the companion cases of Miller v. Johnson and United States v. Hayes, in which the Court invalidated racial gerrymanders in Louisiana and Georgia.

The issue in these cases is whether it is unconstitutional to create wildly odd-shaped legislative districts for the purpose of maximizing the proportion of voters of a particular race, when such districts violate traditional districting standards of compactness and affinity of community interests. The purpose of this whole enterprise is to use federal voting-rights law to allocate congressional seats by race, so that every racial and ethnic group in the nation is proportionately represented according to their numbers in the population at large. While greater minority representation in public life is to be desired, this particular quota regime is in fact a stealthy imposition of the system of proportional representation used in places like Israel, Japan, Russia, and Germany (under the Weimar Republic). Everyone familiar with the unstable politics of those countries knows that this kind of rigid proportional representation is disastrous for social peace, because it rewards extremists and penalizes consensus building. For this reason, many have long thought that the Anglo-American tradition of allocating electoral districts geographically is better than the Continental European tradition of proportional representation.

The Ginsburg-Breyer view of racial gerrymandering
would authorize a racial quota system for Congress

The Ginsburg-Breyer view of racial gerrymandering would authorize nothing less than a racial quota system for Congress. By enshrining a system of racial and ethnic proportional representation, it would also codify a political system of racial spoils and push us toward the unstable electoral system that has been the bane of Continental European democracies.