March 8, 2005

Supreme Court Justice Anthony Kennedy last week demonstrated for all to see that, like many judges today, he and a majority of his colleagues see themselves as the final arbiters not just of the meaning of the Constitution but of all public-policy questions. They sit not as jurists but as unelected superlegislators with the power to do just about anything they want about anything brought before them.

His majority decision in the death-penalty case Roper v. Simmons cites nearly everything from changing societal mores to the feelings of foreign elites to justify reversing a previous decision he had himself supported. With scant reference to the Constitution he is charged with interpreting, he wrote a revealing opinion suggesting that his earlier vote and his present opinion were mere personal opinions from a man with the power to impose those opinions on his fellow citizens.

It’s no wonder that so many conservatives are demanding that the president appoint men and women to the judiciary who have at least a passing familiarity with the Constitution and an appreciation of the fact that the judiciary and the legislative branches of government fulfill different roles in a free society.

The tendency of judges to want to act as legislators is nothing new, of course, and even though Kennedy’s reasoning is particularly egregious he and his colleagues are not alone in usurping power that more rightly belongs to elected officials. In recent years, the courts have forced their will on governors, mayors and just about everyone within their sight and done so in ways that have handcuffed elected officials and prevented their successors from adjusting policies as times have changed.

Government officials trying to get out from under lawsuits filed by one group or another have too often been forced by judges to agree to a course of conduct calculated to satisfy both the demands of the folks bringing suit and the whims of the judge hearing it. To be fair, many of these agreements may have seemed reasonable enough when they were agreed to but make little sense today. Virtually all of them reduce the scope of democratic self-governance by tying the hands of elected officials and the governed alike.

You see, Kennedy may have the power to reimagine the Constitution whenever he changes his mind, but elected officials bound by decades-old agreements entered into while they were in grade school are stuck with them even if they no longer make any sense at all.

Consider just a few examples: In New York, a 30-year-old consent decree is forcing Hispanic children into bilingual education programs — over the objections of their own parents who would prefer that they be taught English — because 30 years ago a judge thought they should be taught in Spanish rather than English. And in Los Angeles, transit officials are forced to spend almost half of all transit money on buses not because the bus system needs the money or because spending it on buses rather than other modes of transportation makes sense but because a judge said long ago that this is the way the city’s spending must be allocated.

Sen. Lamar Alexander (R-Tenn.), who has had, as a former secretary of education and governor, to contend with a consent decree or two in those earlier incarnations, wants to do something about all this. The current Democratic governor and citizens of Alexander’s home state are in a real bind because of a series of old consent decrees that threaten to destroy the state’s Medicaid program by preventing reasonable reform of a program that is, by all accounts, completely out of control.

No doubt partially in response to pleas from back home, but also because he happens to be a serious student both of democracy and public policy, Alexander has stitched together a bipartisan Senate coalition in support of making it easier for today’s elected officials to throw off the shackles of outdated agreements to which they weren’t a party.

Alexander, joined by Sens. John Cornyn (R-Texas), Jon Kyl (R-Ariz.), Mark Pryor (D-Ark.) and Ben Nelson (D-Neb.), has introduced legislation that might at least slow down what they call “democracy by court decree.” It is actually a bill that might more accurately be called the Democracy Restoration Act. It would require a review of these decrees after they’ve been in effect for four years or after elected officials bound by but not parties to them have been in office for six months.

These are serious legislators, and while much more needs to be done to rein in today’s runaway judges, their bill at least represents a start.

David Keene, chairman of the American Conservative Union, is a managing associate with Carmen Group, a D.C.-based governmental-affairs firm (www.carmengrouplobbying.com)