Week of September 1, 1996

by F.R. Duplantier

We're told that the era of big government is over, but what about the era of judicial activism? When will that end?

Constitutional law expert Richard Morgan predicts that the era of judicial activism is almost over -- and that, when the end comes, it will come rapidly. He likens this imminent, swift demise of an outworn orthodoxy to the sudden fall of the Soviet empire. "Just as political and social institutions that appear as durable as the mountains can collapse almost over-night," Morgan explains, "so, too, seemingly impregnable intellectual orthodoxies can suddenly stand revealed as so flawed that we're abashed at having accepted them for so long."

Writing in the Summer issue of the Manhattan Institute's City Journal, the Bowdoin College professor contends that "America is on the edge of such a collapse of orthodoxy in our thinking about the proper role of judges and judge-made law in our governmental process. Central to this change," he says, "is the demythologizing of the Supreme Court's 1954 desegregation decision, Brown v. Board of Education."

Before we can lay judicial activism to rest, we must first acknowledge the flawed nature of the Brown decision. "The collapse of Brown as a model for judicial behavior will resonate through many of the most contentious areas of American public policy," says Morgan, "from criminal justice and affirmative action to education and welfare reform: for Brown is the mother of contemporary judicial activism -- policy making by judges acting essentially as legislators, without any real justification from such ordinary legal authorities as statutory and constitutional texts, history, and precedent." Morgan charges that the Supreme Court decision that "overruled the people of Colorado in May with respect to homosexual rights, without any serious attempt to offer a constitutional reason for doing so, is only the latest example of the Brown style of judging."

Morgan notes that "arguments undermining the authority of Brown as a model for judging have long been piling up. Right from the beginning, some of the country's most distinguished constitutional lawyers criticized Brown -- and especially Chief Justice Earl Warren's opinion, which relied on essentially sociological reasoning to brush aside 70 years of precedent and settled understanding as to the meaning of the Fourteenth Amendment." The Chief Justice relied "neither on text, nor history, nor precedent," says Morgan, while, in effect, "claiming for the Court the authority to revise the meaning of the Constitution."

Richard Morgan maintains that the Court "attempted to dismantle segregation (a profoundly important end) by means that were profoundly wrong. Not only did this judicial fiat traduce democracy, substituting the will of the judges for decision by the people and their representatives; it disregarded fundamental constitutional forms (federalism, separation of powers, and the procedures for amending the Constitution prescribed by Article V)." The Brown decision "launched the modern era of judicial 'reform,' in which purportedly noble ends can justify even the most constitutionally suspect means." It's time, says Morgan, to admit the error in Brown.

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