STATEMENT OF NADINE STROSSEN, PRESIDENT,

AMERICAN CIVIL LIBERTIES UNION

Mr. Chairman, and members of the Subcommittee:

I am Nadine Strossen, President of the American Civil Liberties Union and Professor of Law at New York Law School, where I teach constitutional law.

I want to thank House Judiciary Committee Chair Henry Hyde as well as the Constitution Subcommittee Chair Charles Canady and Ranking Minority Member Bobby Scott for inviting me to testify on the vitally important -- and perennially controversial -- subject of "Congress, the Court, and the Constitution."

I appreciate the opportunity to testify before you today on behalf of the American Civil Liberties Union (ACLU). The ACLU is a nation-wide, non-partisan organization of more than 275,000 members devoted to protecting the principles of freedom set forth in the Bill of Rights and the Constitution.

I understand that these hearings have been called in response to charges by some members of Congress and by some citizens' groups that federal judges have engaged in inappropriate "activism" that, in their view, undermines democratic principles and the separation of powers. Proposed solutions to this alleged problem include calls for impeaching particular judges and amending the Constitution to constrain the power and independence of all federal judges through such means as imposing fixed, limited judicial terms of office and allowing Congress to override judicial decisions on constitutional issues.

While I welcome the Committee's discussion of these important issues, I disagree both with the diagnosis of the alleged problem and with the vaunted solutions. Not only is there no disease of unwarranted judicial activism, but even if there were, the proposed cures would be worse than the disease. And, in so stating, I speak in both of my capacities: as a scholar and teacher of constitutional law and as head of the organization that has been hailed by supporters and critics alike as the most influential advocate of constitutional rights in our nation's courts.

Critics denounce as inappropriate activism judges enforcement of constitutional rights, especially when the consequence is to invalidate government measures that are supported by the majority of elected officials and the electorate, and especially when the most immediate beneficiaries are unpopular or controversial individuals or disempowered minority groups. But, far from deciding such judicial action as deviating from the judiciary's constitutionally designated role, as critics contend, I applaud it for faithfully fulfilling the Constitution's commands concerning individual rights and the judiciary's responsibility to protect them.

Although all elected and appointed government officials take the same oath to defend and uphold the Constitution, far too often, elected officials honor that pledge in the breach. When it would be politically unpopular to stand up for constitutional principles rather than follow the latest public opinion poll, too many politicians ignore our nation's original "Contract with America," our Constitution and Bill of Rights. To add insult to injury, they then attack the federal judges who do have the political courage to abide by their oath to enforce constitutional limits on governmental power and to uphold constitutional guarantees of individual liberty.

Regardless of whether I agree or disagree with a particular judge's ruling in a specific case -- and, certainly, my ACLU colleagues and I have criticized many court decisions over the years -- I respect the independence of the judicial branch of our federal government, and the special role it holds in the carefully structured system of limited and divided governmental powers that our constitutional framers devised. The remedy for particular decisions with which one disagrees is to seek relief within the judicial system itself.

A number of rulings that have provoked denunciations have in fact been overturned -- to cite one recent example, Judge Thelton Henderson's preliminary 'injunction against the implementation of California's anti-affirmative action voter initiative, Proposition 209. The ACLU led the constitutional challenge to Proposition 209, advancing strong arguments -- consistent with Supreme Court precedents and constitutional principles -- that it violated both the Equal Protection Clause and the Supremacy Clause of the U.S. Constitution. Accordingly, I disagreed with the ruling of the federal appellate court that rejected these arguments and overturned Judge Henderson's order. However, in contrast to some Congressional and other critics of Judge Henderson's ruling, neither I nor any of the ACLU's broad-based coalition partners in the Proposition 209 case have called for the impeachment of the appellate judges who denied our claims.

In addition to seeking to overturn particular rulings by appealing those rulings themselves, anyone who has a certain vision of constitutional rights -- or of limits on those rights -- can also seek to influence constitutional law through longer-term strategies aimed at remolding the Supreme Court's interpretations of the Constitution. The most famous example of this longer-range approach is the NAACP's carefully orchestrated series of cases that culminated in Brown v. Board of Education, in which the Supreme Court unanimously overturned an earlier decision, Plessy v. Ferguson, and held that racially segregated public schools violate the Constitution's equality guarantee, repudiating the "separate-but-equal" doctrine.

More recently, we have witnessed a campaign using a similar strategy to advance a different constitutional vision: the efforts by "pro-life" forces to overturn Roe v. Wade, with its recognition of constitutional protection for women's reproductive freedom. While these efforts have not achieved the outright and complete reversal of Roe, they have resulted in a substantial cutting-back on the scope of the night that Roe had upheld, and a concomitant expansion in governmental power to restrict women's access to abortions. I certainly disagree with the Supreme Court's post-Roe decisions that have curtailed women's reproductive rights. Again, though, my belief that specific judges or courts are mistaken in particular rulings does not undermine either my support for the independent federal judiciary as an institution, or for the judicial review power, as essential pillars in our constitutional structure.

The evolution of the Supreme Court's jurisprudence in abortion cases, in the past quarter-century since Roe, illustrates another important avenue of redress for those who disagree with particular rulings, which - in contrast with radical proposals to impeach judges or curtail their constitutional powers -- is wholly consistent with the Constitution. Specifically, the Constitution affords the President and the Senate an opportunity to influence the composition of the federal courts by confirming or refusing to confirm individuals based on their character, qualifications, and the judicial philosophies they espouse.

In this respect, as in so many others, I celebrate the genius of our Constitution, which struck a delicate balance between -- on the one hand -- making federal judges too beholden to majoritarian pressures, and thus not sufficiently protective of individual and minority group rights, and -- on the other hand -- shielding judges too much from majoritarian concerns, hence making them insufficiently accountable to democratic processes. Avoiding both of these extremes, our Constitution affords federal judges some independence from majoritarian forces by guaranteeing them tenure "during good behavior," subject to removal only through the extraordinary process of impeachment; but the Constitution also imposes some degree of democratic accountability on federal judges by requiring them to be nominated by the President and confirmed by two-thirds of the Senate.

In recent history, the nomination and confirmation process concerning federal judges has received much political, media, and judicial appointments. Indeed, many scholars and jurists have charged that this process has become too politicized, tilting our Constitution's delicate balance too far away from judicial independence and too far toward popular accountability. Putting aside the merits of those charges, it suffices for the present discussion to note that critics of Roe and other "activist" rulings have had an enormous influence in remaking the federal courts, from the Supreme Court on down, by electing Presidents who would nominate, and Senators who would confirm, judges who shared their constitutional and judicial philosophy.

In short, critics of judicial "activism" have already had a significant influence on the composition and philosophy of our federal courts, by acting through existing constitutional and legal channels. Therefore, I cannot understand either why they continue to complain of activism or why they still seek to alter our established constitutional and legal processes.

The recently stepped-up attack on the perennial bogeymen of many (but, significantly, far from all') political conservatives, "activist" federal judges, is as ironically ill-timed as it is dangerously destructive of fundamental constitutional values. While the courts' critics decry "tyranny of the judiciary," the alternative they advocate is the far more dangerous "tyranny of the majority."

The irony of the timing is that this attack comes while our federal courts continue to be dominated by judges appointed during the twelve years of appointments by the Reagan and Bush Administrations. Both Administrations systematically selected judges who as a group have a relatively narrow view of judicially enforceable constitutional rights. To compound the irony, as Attorney General, Ed Meese played an instrumental role in this selection process; yet he is now railing against the federal bench that still bears his stamp.

Nor has that stamp been significantly muted by President Clinton's subsequent judicial appointments. He has moved slowly and cautiously in filling federal Judicial vacancies. He has avoided nominating individuals who would be ideological counterweights to the many extreme exponents of "judicial restraint" who had been appointed during the preceding dozen years.

Moreover, as was recently noted by no less staunch a conservative than Chief Justice Rehnquist, the Senate has been slow to act on the judicial candidates that President Clinton has nominated.

The ideological tilt of the U.S. Supreme Court typifies the cast of all our federal courts. On the one hand, the current Chief Justice and two of his brethren -- Antonin Scalia and Clarence Thomas -- are among the most conservative jurists to sit on the Court in recent history, voting to overturn many core tenets of post-New Deal jurisprudence. In contrast, the present Supreme Court includes not a single member who espouses the energetic enforcement of constitutional rights that was its hallmark during the Warren Court era.

During the Warren Court era, the battle cry against "judicial activism" was at least understandable, insofar as it responded to that Court's active protection of individual liberties and civil rights. Now, more than a generation and two conservative Chief Justices later, the Court has stepped back from that role. It has significantly reduced both the substantive scope of rights it deems constitutionally protected and the remedies it affords to victims of rights violations.

Nowhere is this rollback more severe than in the criminal justice arena. The Court has overturned many longstanding precedents to curb constitutional rights of suspected criminals. Moreover, it has cut off numerous avenues for asserting even those truncated rights that it continues to recognize in theory. For example, the Court (together with Congress) has hamstrung the hallowed remedy of habeas corpus, or federal court review of state convictions' which Alexander Hamilton hailed as "the greatest liberty of all" -- so severely that, for all practical purposes, it is unavailable to many prisoners, even if they are on Death Row, their constitutional rights were violated, and they have evidence that they did not commit the crimes for which they face execution.

In the area of racial justice -- another area where the Warren Court vigorously protected constitutional rights -- the subsequent cutbacks parallel the pattern in the criminal justice area. In a series of decisions over the last several years, the Supreme Court has consistently prevented lower federal courts and other government officials from implementing meaningful remedies for school segregation, discrimination in voting, and discrimination in government contracting. Of particular note, the Court has dramatically restricted the availability of race-conscious affirmative action remedies. The repeated attacks on federal courts for upholding racial "quotas," therefore, illustrates the misguided nature of the current assault on the judiciary.

In short, the current Supreme Court and other federal courts already exercise the very judicial restraint concerning constitutional rights claims for which their critics clamor.

Apparently, though, these critics are not content for their views to prevail on most courts and in most cases. Nor are they satisfied with a series of recent congressional measures that already sharply limits the power of federal courts to hear important categories of cases involving basic rights on behalf of relatively unpopular, powerless groups, including poor people, prisoners, and immigrants -- the very kind of claims and clients for which the Constitution and its independent federal judiciary are designed to serve as the ultimate protector.

Nonetheless, these critics call for even more extreme "court-stripping" measures, including the elimination of the lifetime tenure that the Constitution guarantees to federal judges, and the power of judicial review that has been enshrined since Chief Justice John Marshall's historic ruling in Marbury v. Madison. " They thus endanger the federal judiciary's constitutionally mandated independence from the elected branches of government, and prevent it from fulfilling its designated role in the Constitution's scheme of checks and balances: to curb overreaching and abuses by the other branches of the federal government and by state governments, and to protect even the politically powerless individuals and minority groups whose rights are the least likely to be secured by the political branches of government.

Our founders wisely structured a government that was not a pure democracy. Although most government policies are determined by elected representatives who are responsive to the majority will, our Constitution's framers recognized that there are some rights that are so fundamental that no majority -- no matter how large -- could deny them to any minority, no matter how small or unpopular. In order to prevent what James Madison termed "tyranny of the majority," the Constitution provided for federal courts whose members were insulated from majoritarian pressures through lifetime tenure, subject to removal only by impeachment.

Modem history provides many examples of federal court judges withstanding popular pressure to stand up for the rights of embattled racial, religious, political, and other minorities. With twenty-twenty hindsight, the contemporary consensus now recognizes recurrent past instances in which the elected branches of government acted in an unconstitutional and unjust manner. Correspondingly, while the federal judges who resisted those political tides were at the time harshly denounced and threatened with impeachment or even physical harm, they are now widely respected, even by current critics of judicial autonomy.

A prime illustration is the "massive resistance" that Southern officials mounted to Brown v. Board of Education and other Warren Court rulings outlawing racial segregation, and to the remedial orders issued by such "activist" Southern federal judges as Elbert Tuttle, John Minor Wisdom and Frank Johnson. Where would we now be, in our national struggle for racial Justice, were it not for the leadership of these courageous federal judges, who actually honored the oath that all government officials take to uphold the Constitution? As their inspiring example underscores, the fact that federal judges are unelected and life-tenured is not a problem -- as current critics contend -- but rather a solution to some of our nation's most intractable problems, such as racial discrimination.

The special responsibility of federal judges to enforce constitutional rights even -- indeed, especially -- when they are unpopular with elected officials and the majority of their constituents was most eloquently explained by former Supreme Court Justice Robert Jackson, who could hardly be accused of being a "judicial activist." Nevertheless, in 1943, he and seven of his fellow Justices struck down a very popular measure that had been adopted throughout the country in response to World-War-II-heightened nationalistic fervor: mandatory flag salutes in the public schools. In West Virginia Board of Education v. Barnette, the Court recognized that the Constitution protects even such a tiny, unpopular minority as Jehovah's Witnesses schoolchildren from having to participate in even such a deeply revered ritual.

While the Jehovah's Witnesses objected to the flag salute specifically because it violated their religious beliefs, Justice Jackson explained why all constitutional rights deserve protection from majoritarian pressures, and hence illustrated the uniquely important role of federal courts in general:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's night to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

While we now recognize Barnette and Brown as landmarks of liberty, at the time they were decided, they and the judges who issued them were denounced in precisely the same terms that critics are now using to attack more recent judicial rulings upholding other human rights claims. Perhaps, in due course, these more recent rulings will also be vindicated in the court of public opinion.

In any event, the fact that federal judges overturn initiatives supported by the majority of citizens or politicians does not cast any doubt on the legitimacy of the federal courts. To the contrary, it vindicates the special, essential function of these courts as a check against abuses of power by elected officials and intolerant majorities. The independence of the federal courts must be preserved not despite their power to overturn majoritarian decisions, but rather precisely because of that power.

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