SUPREME CONSEQUENCES How a President's Bad Judicial Appointments Threaten Your Liberty

SUPREME CONSEQUENCES | i TABLE OF CONTENTS

The Federal Judiciary: No Longer the "Least Dangerous Branch"...... 2

Fast Facts About the Supreme Court...... 4

Seats on the Supreme Court...... 6

Supreme Court Justices' Tenure...... 8

The Road to Confirmation...... 10

Confirmation Odds & Ends...... 12

What Makes a Good or Bad Judge?...... 14

Why Every Vote Matters...... 16

A Closer Look at the Lower Courts...... 18

Resources to Learn More...... 21

ii | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 1 THE FEDERAL JUDICIARY: NO LONGER THE "LEAST DANGEROUS BRANCH"

ur Founding Fathers recognized that Examples of Supreme Court Power Grabs The first step in curbing the judiciary’s excesses Otoo much power accumulated in one is for the President to nominate and the Senate branch of government is a significant threat to confirm individuals with a proper under- to liberty. They sought to avoid this by sep- standing of the limited role of the judiciary. arating power among the three branches of The President’s choices will have a big impact the federal government and between the on the judiciary because he or she will likely federal government and the sovereign states. have the opportunity to nominate Supreme This system of checks and balances would Court justices and roughly one-third of federal prompt ambition to counteract ambition. Our Usurping national security The Supreme Court instituted district court and appeals court judges. The constitutional system relies on this separa- authority, the Supreme Court one of the largest tax increases in President should nominate individuals whose tion of powers to limit the ability of any one extended the right of habeas history in National Federation of records demonstrate that they will apply branch to encroach upon the prerogatives corpus to the Guantanamo Bay Independent Business v. Sebelius the Constitution and laws according to their of the other branches, helping preserve our detainees in Boumediene v. Bush. when it strained the Affordable liberty against any monopoly of govern- original public meaning. Senators should rig- Care Act’s text to uphold the mental power. orously question nominees about their judicial individual health care mandate philosophy and examine their records, and then While the courts have the duty to say what as a valid exercise of Congress’s vote to confirm only nominees who understand the law is in a case properly before them, the taxing power. the proper limited role of the judiciary. other branches of government have an inde- pendent obligation to uphold the Constitution. Although the Framers of the Constitution envi- sioned that the judiciary would be the “least dangerous branch,” it has transformed itself into a policymaking body that wields wide- ranging power over virtually every aspect of DID YOU KNOW? American life. The Supreme Court has grabbed power by declaring that its decisions are hen judges rely on the so-called the supreme law of the land, and the other In Kelo v. City of New London, the In recognizing a constitutional WLiving Constitution to make the branches have largely acceded to these claims. Supreme Court interpreted the right to marriage that includes text comport with what they see as the Takings Clause of the Constitution same-sex couples in Obergefell spirit of the times, they exceed their to allow the government to seize v. Hodges, the Supreme Court authority to interpret the Constitution. citizens’ homes—not to build a issued a decision so unmoored One example is the doctrine of Judges engage in judicial activism when road or fulfill some other public from the text of the Constitution “evolving standards,” whereby a court they write subjective policy preferences use as is required by the Fifth that even supporters of the ruling looks to the national consensus of into the law instead of applying the law Amendment, but to transfer the have described it as unintelligible states to decide whether a practice impartially according to its original meaning. property to a private corporation and poorly reasoned. violates the Constitution. because it could pay more taxes.

2 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 3

To date, the Court has issued

FAST FACTS more than ABOUT THE SUPREME COURT 30,000opinions. “ Only Presidents failed to appoint a single justice to the Supreme Court: The judiciary…has no influence over either the sword or the 4 purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment. “ —Federalist No. 78, Alexander Hamilton Andrew William Henry Zachary Jimmy Johnson Harrison Taylor Carter

George Washington appointed Andrew Jackson appointed OCT NOV DEC JAN FEB MAR APR MAY JUN OCT NOV DEC JAN FEB MAR APR justices justices The Supreme Court’s term runs from The justices hear oral arguments from 11 6 the first Monday in October through October to April and issue opinions over the course of his presidency—including including Chief Justice Roger Taney, the end of June. from around Thanksgiving through the recess appointment of John Rutledge as author of the infamous the end of June. Chief Justice, whom the Senate rejected. Dred Scott v. Sandford decision.

The Court agrees to hear Franklin Delano Roosevelt roughly cases appointed is the 70 from an average of 8 justices Only President 7,000 to be appointed to the Court. He became petitions it receives each term. and elevated one to Chief Justice. Chief Justice eight years after his presidency.

4 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 5 SEATS ON THE SUPREME COURT

1789 1800 1802 1807 1837 1863 1866 1868 DID YOU KNOW?

In 1937, in an attempt to 6 5 6 7 9 10 7 9 oust the “Four Horsemen”— Congress Congress reduces Congress Congress Congress Congress Following Congress conservative justices who passes the the number of restores the increases the increases the increases the the Civil War, increases the opposed the New Deal agenda— Judiciary Act, seats to five. sixth seat. number to number to number to 10 Congress number to Franklin Delano Roosevelt setting the This may have seven justices. nine justices. justices to decreases the nine justices, tries to persuade Congress number at been intended secure a pro- number to where it has to allow the appointment of six justices, to prevent the Union majority. seven justices to stayed. an additional justice for every including one incumbent prevent Andrew sitting justice who chooses not Chief Justice. President, Thomas Johnson from to retire upon turning 70, with Jefferson, from making any a maximum of six extra justices. making an appointments. The measure fails in the Senate. appointment.

Today, there are nine seats on the Supreme Court, but that was not always the case. Here’s a look at how the number of justices has varied over the years.

6 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 7 SUPREME COURT JUSTICES' TENURE DID YOU KNOW?

CURRENT SUPREME Shortest Term any early Supreme COURT JUSTICES MCourt justices resigned from the Court to take posi- 1 tions they viewed as more YEAR, 18 days prestigious. For example, in 1791, John Rutledge left the Court to serve on a South John Rutledge, 1790-1791 Carolina state court; our first Chief Justice, , ran for governor of New York Longest Term twice during his tenure on the (Bush, 2005) (Reagan, 1988) (Bush, 1991) Court and left in 1795 when Tenure: 10 Years Tenure: 28 Years Tenure: 24 Years he was elected; and David Age: 61 Age: 80 Age: 68 Davis left the Court in 1877 after 15 years to become a U.S. Senator for Illinois.

ntil the late 1800s, the Ujustices were required to travel around a circuit of courts to hear appellate 36 cases. This schedule and the harsh travel conditions made Ruth Bader Ginsburg Stephen Breyer YEARS, (Clinton, 1993) (Clinton, 1994) (Bush, 2006) the job unappealing to many Tenure: 23 Years Tenure: 22 Years Tenure: 10 Years leading lawyers of the time. Age: 83 Age: 78 Age: 66 209 days Today, an appointment to the Supreme Court is typically William O. Douglas, 1939-1975 the capstone of a long legal career, and justices serve until they are ready to retire alto- gether or until their deaths. ? Average length of justice’s term Sonia Sotomayor Elena Kagan To Be Determined (Obama, 2009) (Obama, 2010) With the passing of Justice Antonin Tenure: 7 Years Tenure: 6 Years Scalia at age 79, this seat is currently Age: 62 Age: 56 vacant. Appointed by President Ronald Source: Supreme Court of the , Reagan in 1986, Scalia served on the “Frequently Asked Questions: Supreme Court 16 Justices,” http://www.supremecourt.gov/ Supreme Court for nearly 30 years. YEARS faq_justices.aspx#faqjustice4.

*Data current as of summer 2016

8 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 9 THE ROAD TO CONFIRMATION

VACANCY OCCURS SENATE JUDICIARY START COMMITTEE CONSIDERS 5 NOMINATION A nominee submits answers to a detailed questionnaire discussing employment history, associations and memberships, published 4 BLUE SLIP writings and speeches, and prior 1 judicial o ce and summaries of ABA RATING The chairman of the Senate significant cases (if applicable). Judiciary Committee sends Then the committee holds a The American Bar Association’s letters to Senators from the hearing to ask the nominee Standing Committee on the nominee’s home state soliciting 8 questions about his or her record, PRESIDENT SIGNS Federal Judiciary rates nominees their opinions as to the nominee’s judicial philosophy, writings, from “not qualified” to qualifications. This informal and other relevant information. JUDGE’S COMMISSION “well qualified.” Nine Presidents practice is not part of the Senate’s Sometimes witnesses will present AND JUDGE IS SWORN IN have solicited these ratings rules, but it has been used in some testimony about a nominee. For before selecting nominees, but form since 1917. nominees who have served on some have expressed concern a lower court, Senators should about the ABA’s liberal bias. ask the nominee to explain 3 any controversial rulings. 7 SENATE’S DUTY TO ADVISE DEBATE AND VOTE

AND CONSENT BEGINS Once a nominee reaches the 2 full Senate, Senators may The Senate’s duty to “advise and 6 PRESIDENT MAKES debate whether or not to consent” does not mean COMMITTEE VOTES TO REPORT NOMINATION confirm. Then they go rubber-stamping nominees. NOMINEE TO THE FULL SENATE through the process of voting Traditional deference to the to confirm or reject the President’s choices does not mean nomination. that nominees who would be bad judges should be confirmed.

POSSIBLE SCRUTINY FILIBUSTER SPECIAL INTERESTS ROADBLOCKS The media scrutinize a nominee’s work history, Senators can try to block a Special-interest groups try to extract assur- affiliations, and personal life. During the Senate nominee’s confirmation by using ances that nominees will rule in favor of TO vetting of Supreme Court nominee Robert this procedural maneuver. In 1968, their causes once confirmed. NARAL Pro- CONFIRMATION Bork, journalists dug through his trashcans and such a method was used to prevent Choice America urged Senators to ask Sonia visited his video rental store hoping to uncover Associate Justice Abe Fortas from Sotomayor about her views on the Court’s juicy details about his personal life. being elevated to Chief Justice. abortion cases before she was confirmed.

10 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 11 CONFIRMATION "[A] jurisprudence based on first principles is neither“ conservative ODDS & ENDS nor liberal, neither right nor left. It is a jurisprudence that What happens if a vacancy Can the President make Does the Senate have cares about committing occurs during a presidential recess appointments to the a duty to confirm? and limiting to each election year? Supreme Court? Though the Constitution says the organ of government Supreme Court vacancies in presidential The Constitution permits the President to President “shall nominate” justices, the the proper ambit of its election years are rare. fill a judiciary vacancy with a temporary Senate’s obligation to provide “advice and responsibilities. It is a appointment when the Senate is in recess. consent” is not fleshed out. The Senate jurisprudence faithful to The last time a nominee was confirmed to is free to withhold its consent and is not our Constitution." a seat that opened up during a presiden- Past Presidents, including George obligated to hold hearings or votes. tial election year was in 1932. Republican Washington and Dwight Eisenhower, President nominated made recess appointments to the To date, the Senate has confirmed 124 of 161 nominations to the Supreme Court. — III, Benjamin Cardozo on February 15, 1932, Supreme Court. These temporary appoint- 75th U.S. Attorney General and the Republican-controlled Senate ments last until the end of the Senate’s confirmed him on February 24. next session. Of the 36* who were not confirmed, 25 were never voted on by the Senate. This The last confirmation when the President There have been nine recess appoint- includes six nominees who were later was not from the same party as the ments to the Supreme Court. confirmed, such as John Roberts who was Senate majority occurred in 1888 when first nominated to be an associate justice Democratic President Grover Cleveland The Supreme Court determined in Noel replacing Sandra Day O’Connor but subse- nominated and the Republican Senate Canning v. National Labor Relations Board quently was nominated to be Chief Justice confirmed Melville Fuller as Chief Justice. that the Senate alone determines when it is after passed away. "[T]he highest exercise in recess and that a recess lasting less than A current member of the Supreme Court, 10 days is presumptively too short to allow of judicial duty is to Justice Anthony Kennedy, was confirmed the President to make a recess appoint- subordinate“ one's in a presidential election year (1988), but ment. When the Senate breaks for the personal pulls and one's the vacancy that he filled arose in the evening, this is not an opportunity for the private views to the law." previous year and was held over because President to make a recess appointment. the Senate defeated the first person nom-

inated to that seat. *A nomination to the Supreme Court is pending as of publication.

—Justice Felix Frankfurter Source: Josh Blackman, “Nominations to Supreme Court in Election Year with Divided and unified Governments,” February 13, 2016, http://joshblackman.com/blog/2016/02/13/nominations-to-supreme-court-in-election-year-with-divided-and-unified-governments/.

Source: Barry J. McMillion, “Supreme Court Appointment Process: Senate Debate and Confirmation Vote,” Congressional Research Service Report, October 19, 2015, https://www.fas.org/sgp/crs/misc/R44234.pdf.

12 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 13 WHAT MAKES A GOOD JUDGE? WHAT MAKES A BAD JUDGE? A good judge is committed to faithfully applying the Constitution and statutes by A bad judge interjects subjective policy preferences into the law, strains the text to relying on their original public meaning, understands that a judge’s role is limited, achieve desired ends, elevates personal sympathy for particular litigants above the and does not issue outcome-oriented decisions. requirements of the law, turns to international law to justify a preferred outcome, and reads new rights into the Constitution that are not grounded in the text.

FAITHFUL ORIGINALIST PLAYS LAWMAKER LIVING CONSTITUTION IMPARTIAL TEXTUALIST BIASED

CONTORTS OBJECTIVE TEXT INVENTS RIGHTS

PRINCIPLES PICKS OVER POLITICS RESTRAINED END JUSTIFIES FAVORITES MEANS

In “truly difficult” cases, “adherence to precedent and rules of construction “[U]nless judges are bound by the text of the Constitution, we will, in fact, no and interpretation will only get you through the 25th mile of the marathon. longer have a government of laws, but of men and women who are judges. And That last mile can only be determined on the basis of one’s deepest values, if that happens, the words of the documents that we think govern us will be just one’s core concerns, one’s broader perspectives on how the world works, masks for the personal and capricious rule of a small elite.” and the depth and breadth of one’s empathy."

RONALD REAGAN BARACK OBAMA

14 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 15 very vote matters in cases before Ethe Supreme Court. Often, big Consider some of the important cases WHY cases are decided by just one vote. While the justices agree in many in the past 10 years where one justice cases, it’s important for a President was the deciding vote: EVERY who is nominating a justice to consider that this one person could VOTE make a big difference in nearly a quarter of the cases each term. LOSSES WINS MATTERS Here's a look at the breakdown of votes over the past 10 years: KELO v. CITY OF NEW LONDON MCDONALD v. CITY OF CHICAGO (property rights and eminent and D.C. v. HELLER domain) (gun rights)

DECISIONS BY VOTE COUNT 2005–2014 OBERGEFELL v. HODGES TOWN OF GREECE v. GALLOWAY (creating a right to same-sex and BURWELL v. HOBBY LOBBY marriage) (religious freedom)

Unanimous Decision NFIB v. SEBELIUS CITIZENS UNITED v. FEC and 5-4 Decisions (Obamacare and Congress's MCCUTCHEON v. FEC commerce power) (political speech and campaign contributions) 6-3 Decisions

7-2 Decisions ARIZONA STATE LEGISLATURE RICCI v. DESTEFANO and v. ARIZONA INDEPENDENT PARENTS INVOLVED IN 8-1 Decisions REDISTRICTING COMMISSION COMMUNITY SCHOOLS v. (rewriting plain text for political SEATTLE SCHOOL DISTRICT NO. 1 purposes) (racial preferences and equality under law)

BOUMEDIENE v. BUSH (extending due process rights to GONZALES v. CARHART detainees at Guantanamo Bay) (partial-birth abortion ban)

Judges have no business creating new, special rights for individuals or groups that are not in the Constitution. The only way to create new rights is to amend the Constitution as we have MASSACHUSETTS v. EPA done to meet society’s needs several times in our nation’s history. (agency can regulate SHELBY COUNTY v. HOLDER greenhouse gases) (voting rights)

16 | THE HERITAGE FOUNDATION SUPREME CONSEQUENSES | 17 WHO CONTROLS THE A CLOSER LOOK AT APPELLATE COURTS? THE LOWER COURTS 1 It’s not just the Supreme Court that matters when it comes to judicial nominations. 2 Many cases never reach the Supreme Court, so it’s important that the President also 8 selects good judges for the federal district and appellate courts. 3 9 7 10 6 4

94 13 11 federal district courts of 5 courts with 670 appeals with179 judges judges

Number of cases filed Number of appeals filed D.C. CIRCUIT SUPREME COURT FEDERAL CIRCUIT in federal district court in federal appellate courts in 2014: in 2014: 390,525 55,623 The federal judiciary includes 13 courts of appeals. There are 12 geographically based circuits, which are the First through Eleventh Circuits and the D.C. Circuit. There is one subject-matter based court, the Federal Circuit, which hears appeals involving patents, trademarks, and government contracts, among others. DID YOU KNOW? Currently, Democrat appointees dominate nine of these 13 appellate he Constitution grants courts the power to interpret laws and government courts, and the Supreme Court is evenly split between Republican and T actions in appropriate cases to determine whether they are constitutional. Democrat appointees. No court, not even the Supreme Court, is authorized to make or change the law.

PERCENTAGE OF JUDGES BY PRESIDENTS' PARTY

100% 80% 67% 50% 58-62% 67% 72% 100%

Source: United States Courts, Statistics and Reports, “Federal Judicial Caseload Statistics 2014,” http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2014.

18 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 19 WHICH PRESIDENT'S APPOINTMENTS DOMINATE THE APPELLATE COURTS? RESOURCES TO LEARN MORE Total=93 Carter 1 What Is the Proper Role of the Courts? By Robert Alt | The Heritage Foundation Total=77 Ford 1 Reagan 15 Originalism: A Quarter Century of Debate Clinton By The 38 G. Bush 9

Heritage Action for America: Will You Vote for Obama's Reckless Supreme Court? www.heritageaction.com/judges

G.W. Bush

LEGAL MEMORANDUM 52 LEGAL MEMORANDUM How to Spot Judicial Activism: Three Recent Examples Elizabeth H. Slattery LEGAL MEMORANDUM No. 96 | JuNe 13, 2013 How to Spot Judicial Activism: Three Recent Examples Obama Elizabeth H. Slattery No. 96 | JuNe 13, 2013 Abstract How to Spot JudicialThe courts Activism: have gradually Three abandoned Recent their proper Examples role of policing the structural limits on government and neutrally interpreting the laws Elizabeth H. Slattery No. 96 | JuNe 13, 2013 Abstract and constitutional provisions without personal bias. Judicial activism The courts haveoccurs gradually when abandoned judges decline their to proper apply the role Constitution of policing the or laws accord structural limitsing on to government their original and public neutrally meaning interpreting or ignore the binding laws precedent and Abstract and constitutionalinstead provisions decide cases without based personal on personal bias. Judicial preference. activism Labeling as “activ Key Points ist” a decision that fails to meet this standard does not express policy The courts have graduallyoccurs when abandoned judges decline their proper to apply role the of Constitution policing the or laws accord ■■Courts have an essential constitu structural limits oning government to their originaldisagreement and neutrally public meaning withinterpreting the or outcome; ignore the laws binding it expresses precedent disagreement and with the - tional role of policing the structural and constitutionalinstead provisions decide without judge’scases basedpersonal conception on personalbias. of Judicial his preference.or her activism role inLabeling our constitutional as “activ system. ThreeKey Pointslimits on government and neu - recent cases illustrate how our Founding Fathers’ vision of a govern - trally interpreting the law. occurs when judgesist” decline a decision to apply that the fails Constitution to meet this or standard laws accord does not express policy ■■ ment of laws and not of men is compromised when judges let their subCourts have an essential constitu - ing to their originaldisagreement public meaning with or the ignore outcome; binding it expresses precedent disagreement and with the - tional role of policing■■Judicial the structural activism occurs when j instead decide casesjudge’s based conception on personalective of policypreference.his or herpreferences role Labeling in our control constitutionalas “activ their decisions. system. ThreeKey Pointslimits on governmentjudges and decide neu cases- based on their recent cases illustrate how our Founding Fathers’ vision of a govern - trally interpretingpersonal the law. preferences and in spite ist” a decision that fails to meet this standard does not express policy ■■ How to Spot Judicial Activism: Three Recent Examples ment of laws and not of men is compromised when judges let theirCourts sub have an essential constitu- of the text of the- Constitution, disagreement with the outcome; it expresseshe role disagreement assigned to withjudges the in our -system wastional to role interpret of policing ■ ■theJudicial structural activism occurs when j - statutes and applicable precedent. judge’s conceptionective of his policyor her preferencesroleT in ourthe constitutional Constitutioncontrol their decisions. andsystem. le Three limits on governmentjudges and neu decide cases- based on their ■■ 54 recent cases illustrate how our Foundingto protect Fathers’ the integrity vision of ofa govern the Constitution,- nottrally to interpreting add to it or the personal law. preferencesLabeling and in as spite “activist” a decision sser laws, not to make them. It was ment of laws and not of men is compromisedsubtract fromwhen it—certainly judges let their not sub to rewrite it. For as the- framersof the text of- the Constitution,that fails to meet this standard he role assigned to judges in our system was to interpret■■Judicial activism occurs when expresses disagreement with jective policy preferences control theirknew, decisions. unless judges are bound by the text of the Constitution,- statutes and applicable precedent. Tthe Constitution and le judges decide cases based on their the judge’s conception of his role we will, in fact, no longer have a government of laws, but of men■■ to protect the integrity of the Constitution, not to add to it personalor preferences Labelingand in spite as “activist”in our aconstitutional decision system, not subtract from andit—certainly women who notsser areto laws, rewrite judges. not it. Andto For make if asthat them.the happens, framers It was the words of that fails to meet this standard he role assigned to judges in our system was to interpret - of the text of the Constitution, policy disagreement with the knew, unless judgesthe documents are bound that by thewe thinktext of govern the Constitution,- us will bestatutes just masks and applicable for expresses precedent. disagreementoutcome. with Tthe Constitution and le the judge’s conception of his role we will, in fact,the no personal longer have and a capricious government rule of of laws, a small but elite.■of■ men to protect the integrity of the Constitution, not to add to it or Labeling as “activist” a decision ■■Judges’ subjective policy prefer sser laws, not to make them. It was in our constitutional system, not subtract from it—certainlyand women not who to rewriteare judges. it. For And as if the that framers happens, the wordsthat of fails to meet this standard ences may lead them to uphold —President policy disagreement with the knew, unless judgesthe are documents bound by that the wetext think of the govern Constitution, us will be just masks forexpresses disagreementoutcome. with unconstitutional laws that they - the judge’s conception of his role we will, in fact, nothe longer personal have and a government capricious ofrule laws, of a but small of1 menelite. favor or to strike down lawful ones in our constitutional■ system,■Judges’ not subjective policy prefer and women who are judges. And if that happens, the words of that they oppose. In either case, policy disagreementences with may the lead themjudges to abdicate uphold their duty of fidel th —President Ronald Reagan - e documents that we think govern us will be just masks for outcome. unconstitutional lawsity to that the theylaw. This paper, in its entirety, can be found at http://report.heritage.org/lm96 By Elizabeth Slattery | The Heritage Foundation the personal and capricious rule of a small elite.1 favor or to strike down lawful ones ■■ - Produced by the Edwin Meese III Center for Legal and Judicial StudiesJudges’ subjective policythat they prefer oppose.■■ JudgesIn either are case, not charged with ences may lead them to uphold —President Ronald Reagan The Heritage judges abdicate theirdeciding duty of whether fidel a law leads 214 MassachusettsFoundation Avenue, NE unconstitutional laws that they - to good or bad results, but with This paper, in its entirety,Washington, can be foundDC 20002 at http://report.heritage.org/lm96 ity to the law. 1 favor or to strike down lawful ones whether it violates the Constitu (202) 546-4400 | heritage.org ■■ - Produced by the Edwin Meese III Center for Legal and Judicial Studies that they oppose. In eitherJudges case, are not chargedtion with Nothing written here is to be construed as necessarily reflecting the views of The Heritage and, if not, how it is properly The Heritage judges abdicate their decidingduty of fidel whetherconstrued a law leads and applied in a given- 214 MassachusettsFoundation Avenue,Foundation NE or as an attempt to aid or hinder the passage of any b to good or bad results, but with This paper, in its entirety, can be found at http://report.heritage.org/lm96 ity to the law. case. Washington, DC 20002 whether it violates the Constitu (202) 546-4400 | heritage.org ■■ - Produced by the Edwin Meese III Center for Legal and Judicial Studies Judges are not chargedtion with The Nothing written here is to be construed as necessarily reflecting the views of The Heritagedeciding whether a law leadsand, if not, how it is properly Heritage ill before Congress. construed and applied in a given- 214 MassachusettsFoundation Avenue,Foundation NE or as an attempt to aid or hinder the passage of any b to good or bad results, but with Washington, DC 20002 case. (202) 546-4400 | heritage.org whether it violates the Constitu tion Nothing written here is to be construed as necessarily reflecting the views of The Heritage and, if not, how it is properly ill before Congress. - Foundation or as an attempt to aid or hinder the passage of any b construed and applied in a given case.

ill before Congress.

No. 1147 Delivered October 15, 2008

No. 1147 Delivered October 15, 2008

No. 1147 February 24, 2010 Delivered October 15, 2008 OvercomingKeeping the Corrupteda Republic: Judiciary February 24, 2010 OvercomingKeeping the Corrupteda Republic: Judiciary Abstract: The Honorable Ro Democrat Republican February 24, 2010 steadily becomeAmerica, less of beginninga repu about 50 years ago, has bert H. Bork Overcomingthose Keepingwho prefer the the victory Corrupteda ofRepublic: Judiciary Abstract: processes. The problemThe is bo Honorableblic, and there willRo always be steadily becomeAmerica,and less so of must beginninga repu be the aboutsolution. 50 Alyearstheir ago, interests has to republicanbert H. Bork those who prefercome the of victory the intellectual of stru th political and intellectual, Abstract: processes. Thethe problem politicalThe is Honorablebattlebo blic, to and nom thereinate Ro will mostand always confirmregardless be justices of the and out- America, beginningjudges about who 50 spurn years theiractivism ago, interests has as ilggle, to republicanhowever, there remains Talking Points steadily become lessand of so a mustrepu be the solution. Al bert H. Bork • America today is only partially a republic those who prefer comethe victory of the of intellectual ed instead bystru the thoriginal political unde andrstanding intellectual, of the principles of legitimate and will be guid- and, beginning about 50 years ago, has processes. The problemthe political is bo battleblic,the Constitution.and to nomthereinate will This alwaysmostand may confirmregardless be be th justices of the and out- steadily become less of one. politicians,their interests and to ggle,the republican activist however, gr there remains Talking Points and so must be thejudges solution. who spurnAl activism as il • • thserve political in these and matters, intellectual, have e more difficult task. ManyAmerica todayOnly is onlythe originalist partially aapproach republic to the law is come of the intellectualed instead stru by the original understanding of the principles of and, beginningcompatible about 50 with years rep ago, has the political battlethe to Constitution. nominateconstitutional mostand This confirmregardless may be interpretation;justices th oflegitimate the and out- and thoups will ofbe theguid- Left which they no interest in the legitimacysteadily of becomeActivism less of meansone. lawlessness, and it is rife judges who spurnpoliticians, activism as and ilggle,The the however,appointment activist grthere of remainsnew justice Talking Points ublican government. • America today• isOnly only the partially originalistamong a republicapproach many judges to the and law most is professors of ed instead by the originalserve in undetheserstanding matters,philosophy haveof theis therefore principlese more necess of difficultey task. care Many only about results. constitutional law. republicanlegitimate formand will ofoups government. be ofguid- the Left swhich whoand, holdthey beginning an originalist compatibleabout 50 yearswith ago,rep has the Constitution. Thisconstitutional may be th interpretation; th steadily become Activismless of one. means• Many lawlessness, politicians, andand itthe is activistrife groups of The appointment of new justiceno interest in theary legitimacy for the preservation of of a ublican government. Keeping a Republic: Overcoming the Corrupted Judiciary politicians, and the activist gr • Only the originalistamong approach many thejudgesto theLeft and lawwhich mostis they professors serve in of these matters, serve in these matters,philosophy have is thereforee more difficultnecess task.ey care Many only about results. constitutional havelaw. no interest in the legitimacy of consti- republican formoups of government.of the Left whichs who they hold an originalistcompatible with rep constitutional interpretation; th It is a signal honor to be Activism means• Manylawlessness, politicians, tutionaland and it isinterpretation;the rife activist groups they careof only about no interest in the legitimacyary for the of preservation of a ublican government. The appointment of new justiceannual Joseph Story Lecture among many judgesthe Leftand whichmostresults. professorsthey serve of in these matters, philosophy is therefore necess becauseey care todayonly about is the results. public unveilinginvitedconstitutional to ofgive a 10-yearthe law. firsthave no interest• Nominating in the legitimacy and confirming of consti- justices and republican form of government.campaign,s who hold launched an originalist by Ed Meese. That and is especiallyhis teamtutional atso interpretation;judges who they will care be onlyguided about by the originalist It is a signalary forhonor the preservationto be of a • Many politicians, and the activist groups of annual JosephThe Story Heritage Lecture Foundation, to restorethe theLeft courtswhich theyandresults. serve in theseunderstanding matters, of the principles of the Con- because todaythe is law the topublic their unveilinginvitedproper to ofgive a 10-yearthehave first no interest• Nominatingin the legitimacy andstitution ofconfirming consti- is therefore justices essential and for the preser- campaign, launchedment and by culture. Ed Meese. That and is especiallyhis teamtutional atso interpretation;judges theywho carewillvation beonly guided of about republican by the government.originalist It is a signal honor to be roles in American govern- annual Joseph TheStory Heritage Lecture Foundation,There are many to restore aspects the to thiscourts endeavor,results. and but I willunderstanding of the principles of the Con- because today theis the law public to theirspeak unveilinginvited proper primarily to ofgive a 10-yearaboutthe first the law of• Nominatingthe Constitution, andstitution confirming is therefore justices essential and for the preser- campaign, launchedment andby Edculture. Meese. That and is especiallyhis team atso judges who will bevation guided of republican by the originalist government. which has becomeroles in so American badl govern- The Heritage Foundation,There are to Storymany restore andaspects thehis colleaguescourtsto this endeavor,and would butfindunderstanding I today’swill Constitu- of the principles of the Con- the law to theirspeak proper primarily tion, about and especially the law theof theBi Constitution,y deformedstitution thatis therefore Joseph essential for the preser- ment and culture. That is a serious problem for the republicanvation of republican form of government. By Judge Robert H. Bork which has become so badl This paper, in its entirety, can be found at: roles in American govern- ll of Rights, unrecognizable. www.heritage.org/Research/LegalIssues/hl1147.cfm There are manyStory aspects and his to colleaguesthis endeavor, would but find I will today’s Constitu- tion, and especially the Bi y deformed that Joseph The Joseph Story Lectures speak primarily about the law of the Constitution, Produced by the Center for Legal and Judicial Studies which has becomeThat sois abadl serious problem for the republican form of This paper, in its entirety, can be found at: ll of Rights, unrecognizable. www.heritage.org/Research/LegalIssues/hl1147.cfmPublished by The Story and his colleagues would find today’s Constitu- 214 MassachusettsHeritage Avenue, Foundation NE tion, and especially the Bi y deformed that Joseph The Joseph StoryWashington, Lectures DC 20002–4999 Produced by the Center for Legal(202) and 546-4400 Judicial •Studies heritage.org That is a serious problem for the republican form of This paper, in its entirety, can beNothing found written at: here is to be ll of Rights, unrecognizable. www.heritage.org/Research/LegalIssues/hl1147.cfmPublisheding by the The views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. 214 MassachusettsHeritage Avenue, Foundation NE construed as necessarily reflect- The Joseph Story LecturesWashington, DC 20002–4999 Produced by the Center for Legal (202)and Judicial546-4400 Studies • heritage.org Nothing written here is to be Published bying The the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. 214 MassachusettsHeritage Avenue, Foundation NE construed as necessarily reflect- Washington, DC 20002–4999 (202) 546-4400 • heritage.org Nothing written here is to be ing the views of The Heritage Foundation or as an attempt to aid or hinder the passageconstrued of any bill as before necessarily Congress. reflect-

LECTURE DelIvereD OCTO ber 21, 2015 LECTUREWho Should Interpret Our Statutes and How It Affects Our DelIvereD OCTO Separationber 21, 2015 of Powers DID YOU KNOW? LECTUREWho ShouldThe Honorable Interpret Carlos Our T.Statutes Bea and How It Affects OurNo. 1272 | February 1, 2016 DelIvereD OCTO Separationber 21, 2015 of Powers No. 1272 | February 1, 2016 Who ShouldThe Interpret HonorableAbstract: OurCarlos Statutes T. Bea and How It Affects Our Separation of Powersthey defer toFederal executive courts branch abdicate agencies’ their interpretations duty to interpret of statutes.statutes whenIt is the courts’ duty to say what the law is—even when that lawNo. is 1272ambiguous. | February 1, 2016 The HonorableAbstract: Carlos The T. SupremeBea Court’s reasoning in they defer toFederal executiveal courts courts branch to findabdicate agencies’ just theirabout interpretations duty any tostatute interpret to of be statutes.statutes ambiguous, whenIt is and its decision commands that agencies beKing given v. deference to fill those ambi the courts’ duty to say what the law is—even when that lawb isurwell ambiguous. authorizes the feder guities. Combining this deference with Abstract: The Supreme Court’s reasoning in Key Points Federal courts abdicateas atheir new duty rule toof interpretstatutory statutes interpretation, when we will continue down a dan - n they defer to executiveal courts branch to findagencies’ just interpretationsabout any statute of tostatutes. be ambiguous, It is and its Chevron In reviewing an agency’s con decision commandsgerous that path agencies to erasing beKing given our v. separation deference to of fill powersKing those’s post-hocand ambi consolidating rationalization leg struction of a statute under the courts’ duty to say what the law is—even when that law is ambiguous.burwell authorizes the feder - guities. Combiningislative this and deference judicial with power in the Executive. Judges must reclaim their - Chevron Who Should Interpret Our Statutes and How It The Supreme Court’s reasoning in deference, courts deter role in interpreting statutes so that we are not left with the “tyranny” Key Pointsmine whether that statute is as a new rule of statutory interpretation, we will continue down a dan - n al courts to find just about any statute to be ambiguous, and its Chevron In reviewing an agency’ssilent or ambiguouscon with respect- gerous path to erasingabout which our separation our Founding of powers Fathers and and consolidating Justice Story leg warned us. - decision commands that agencies beKing given v. deference to fill thoseKing ’sambi post-hoc rationalization struction of a statuteto the under issue at hand. If so, courts islative and judicial powerb inurwell the Executive. authorizes Judges the feder must reclaim their Chevron- - guities. Combining this deference with - deference,defer courts to an agency’sdeter reasonable role in interpretinghe statutes interpretation so that we of are statutes not left is with so often the “tyranny” decisive inKey cases ofPoints mine whether that statute is as a new rule of statutory interpretation, we will continue down a dan - n In reviewing an agency’s con interpretation of the statute. about which ourT Foundingnational Fathers importance, and Justice whichChevron Story touch warned all our us. lives. Specifically,- I silent or ambiguous with respect- gerous path to erasing our separation of powers and consolidating leg n want to Kingtalk with’s post-hoc you about rationalization how courts are relinquishingstruction of thea statute power tounder the issue at hand.Deferring If so, courts to an agency opens islative and judicial power in the Executive. Judges must reclaim their - Chevron - - the door for agencies to exercise to interpret Congress’s statutes through deference to executive deference, defercourts to deteran agency’s reasonable role in interpreting statuteshe interpretation so that we are of not statutes left with is sothe often “tyranny” decisive in cases of mine whether that statuteinterpretation is ofjudicial the statute. power. agency interpretations. This undermines our systemsilent or of separaambiguous with respect- about which our FoundingTnational Fathers importance, and Justice which Story touch warned all ourus. lives. Specifically,- I n n It is easy to find a “possible” want to talk withtion you of powers.about how It tends courts to are decrease relinquishing the powers the power ofto theCongress issue at hand.and the IfDeferring so, courts to an agency opens - ambiguity and pass the buck to judiciary while vesting more power in the defer to an agency’s reasonablethe door for agencies to exercise to interpret Congress’s statutes through deference to executive the agency to interpret the stat he interpretation of statutesadministrative is so often decisive subsidiaries. in cases of interpretation of thejudicial statute. power. agency interpretations. This undermines our system of separa ute, but the core of the judicial Tnational importance, which touch all our lives. Specifically, I n tion of powers. It Thistends trend to decrease toward abandonmentthe powers of Congressof judicial and statutoryn Deferring the interpretato an agencyIt isopens easy- to find a “possible” - want to talk with you about how courts are relinquishing the power executive and its many role is interpreting a statute’s judiciary whiletion vesting gained more a solid power foothold in the 30 years ago in the often-citedthe door for agenciesambiguity to exercise and passmost the likely buck meaning to based on the to interpret Congress’s statutes through deference to executive the agency to interpret the stat administrativecase. subsidiaries. I believe the trend was worsened by the Supremejudicial Court’spower. opin words that Congress wrote. agency interpretations. This undermines our system of separa ute, but the core of the judicial ion last term, n tion of powers. It tendsThis to trend decrease toward the abandonment powers of Congress of judicial and statutory the interpretaIt is easy to- find a “possible”role is interpretingn The a reasoningstatute’s of- and King v. Burwell executive and its many - Affects Our Separation of Powers ambiguity and pass the buck to judiciary while vestingtion gained more powera solid footholdina ffordablethe 30 yearsCare ago in the often-cited Chevronmost likely meaningauthorizes based on courtsthe King to find v. Burwell nearly Court held that although Congress, the passed decision a statute in thethe Patient whichagency limitedto Protection interpret the stat any statute to be ambiguous, administrative subsidiaries.case. I believe the trend was worseneda ctby case. the Supreme1 Court’s opin words that Congress wrote. That is the caseute, but where the core the of the Supreme judicial- and ederal judges serve lifetime appointments, and a two-term President could ion last term, n Chevron This trend toward abandonment of judicial statutory interpreta - role is interpreting aThe statute’s reasoning - ofagencies be givencommands deference that to and ThisKing paper, v. Burwellin its entirety,executive can be found and at its http://report.heritage.org/hl1272 many - tion gained a solid footholdaffordable 30 years Care ago in the often-cited mostChevron likely meaning basedauthorizes on the courtsfillKing tothose find v. ambiguities.Burwell nearly As a result, Court held thatThe although Joseph Story Congress Distinguished, the passed decision Lectures a statute in the Patient which limited Protection any statute to be ambiguous, case. I believe the trend was worsened bya thect case. Supreme1 Court’s opin words that Congress wrote. the executive, legislative, and The Heritage Foundation That is the case where the Supreme- and ion last term, n Chevron judicial powers are combined in 214 Massachusetts Avenue, NE The reasoning of agencies be givencommands deference that to and KingThis v. paper, Burwell in its entirety,Washington, can be found DC 20002 at http://report.heritage.org/hl1272- the Executive. affordable Care Chevron authorizes courtsKing tofill find thosev. Burwell nearly ambiguities. As a result, Court held that althoughThe Joseph Congress Story Distinguished, the(202) passed decision 546-4400 Lectures a statute in | heritage.org the Patient which limited Protection any statute to be ambiguous, act case. 1 the executive, legislative, and The Heritage FoundationNothing That written is the here caseis to be construedwhere as the necessarily Supreme reflecting- theand views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill beforeChevron Congress. judicial powers are combined in 214 Massachusetts Avenue, NE agencies be givencommands deference that to This paper, in its entirety,Washington, can be found DC at http://report.heritage.org/hl127220002 the Executive. (202) 546-4400 | heritage.org fill those ambiguities. As a result, The Joseph Story Distinguished Lectures the executive, legislative, and The Heritage FoundationNothing written here is to be construed as necessarily reflecting the views of The Heritage 214 Massachusetts Avenue,Foundation NE or as an attempt to aid or hinder the passage of any bill before Congress. judicial powers are combined in Washington, DC 20002 the Executive. (202) 546-4400 | heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage By Judge Carlos T. Bea F nominate hundreds of judges to the federal judiciary. From trial-level district Foundation or as an attempt to aid or hinder the passage of any bill before Congress. courts to the Supreme Court, these appointments may have a longer and more profound impact on our society and the than anything else a President may do in eight years in office. Supreme Court Website http://www.supremecourt.gov/about/about.aspx

20 | THE HERITAGE FOUNDATION SUPREME CONSEQUENCES | 21 THE LEAST DANGEROUS BRANCH?

The judiciary is often the overlooked third branch of government. Yet the judges who populate its ranks wield tremendous power to decide cases that affect the daily lives of millions of Americans. It was not always this way—the Founders believed that the judiciary would be the "least dangerous branch." Over time, however, judges have inserted themselves into virtually every aspect of life, such as Americans’ ability to own a gun, make campaign donations to political candidates, and own a home free from government interference, among many others.

Judges do not simply appear out of thin air. They are put on the federal bench by the presidents who nominate them and the senators who confirm them. Selecting judges who will be bound by the law and committed to the Constitution is not an ancillary responsibility—it is a central and critical duty, with long-lasting effects. The public, too, has a role to play in shaping the courts, by electing presidents and senators who recognize the proper—and limited—role of judges in our government.

Supreme Consequences: How a President's Bad Judicial Appointments Threaten Your Liberty reveals the proper role of judges in our government, lays out the road to confirmation for those nominated to be judges, and highlights close cases in which a single Supreme Court justice made the difference in cases of incredible significance.

To view the booklet online go to: www.heritage.org/courts.

214 MASSACHUSETTS AVE, NE WASHINGTON, DC 20002

HERITAGE.ORG