I haven’t changed my mind about Harriet Miers being unqualified for the Supreme Court, and I think some of the ridicule she’s getting for her clarity of writing is on target, but some aspects of two 1990s speeches reported in today’s Washington Post don’t seem unreasonable to me. Consider:
“My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue,” she said.
At a speech later that summer titled “Women and Courage,” Miers went further. Citing statistics that showed Texas’s relatively high poverty rates, Miers said the public should not blame judges when courts step in to solve such problems.
“Allowing conditions to exist so long and get so bad that resort to the courts is the only answer has not served our state well,” she said. “Politicians who would cry ‘The courts made me do it’ or ‘I did not do that — the courts did’ should not be tolerated.”
Is that simplistic, as this indicates? Perhaps, but I think there’s a fundamental truth to what she said. I have no idea if she still believes it (or even believed it then), but it’s a reasonable point. I do agree with this post’s clarification, though.
The argument [Miers] makes is that the courts can’t be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals. Eliot Spitzer, for example, often argues that it is necessary to pursue anti-gun policies through the courts because legislatures have failed to act. But it’s hard to see how the courts are to distinguish between a) a legislative “failure to act,” b) a legislative decision that there is no problem demanding solution, or c) a legislative decision that solving any problem would create new and greater problems. Any act of judicial usurpation can be described as a reluctant response to the legislature’s failure to enact what the judges wanted them to enact.
I’m sure a legal scholar (i.e. not Ms. Miers) could posit a useful explanation of how to apply that in a consistent, reasonable manner, but I suspect it’s simply based a) rights being trampled, b) rights being trampled, or c) understanding that the experimentation of federalism has worked for more than two centuries, with the Republic still standing. Or cases will work through the court system as they now do. I don’t claim to be an expert.
The perfect example is same-sex marriage. Any number of issues could apply, of course, but this is the most recent, most obvious example. Essentially, state legislatures and Congress should be in front on the issue, removing DOMA nonsense and removing barriers to civil recognition of marriage for all. They’re not, which means the courts will do it. Not because they’re activist but because it’s obvious that it should and will happen under our Constitution. When elected leaders refuse to remove barriers to liberty, courts are one of the remaining options. The question of judicial involvement as activism is
useful prevalent, but no one should be surprised when it’s used.