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“UNJUSTIFIED CRITICISM OF JUDICIAL ACTIVISM” mentioning the U.S. Dept. of Justice was published in the House of Representatives section on pages H5185-H5186 on July 15, 1997.
The publication is reproduced in full below:
UNJUSTIFIED CRITICISM OF JUDICIAL ACTIVISM
Mr. FRANK of Massachusetts. Mr. Speaker, we have recently heard a lot of criticism of judicial activism. People, especially on the conservative side of our spectrum, have denounced justices, Supreme Court Justices and judges, who, with their life-tenured appointments, have stricken laws passed by the elected officials, and there has been a great deal of criticism that this is essentially undemocratic.
I disagree with the criticism. I think the role of the judiciary in defending our rights, particularly when legislative majorities err and disregard those rights, is a very important one. I am, therefore, pleased to note that there are high-ranking judicial officials who are not deterred. I am here to congratulate in particular two Justices who have repudiated implicitly this criticism of judicial activism. I am here to call attention to the work of two Justices who have consistently upheld the finest traditions of judicial activism by striking laws, by overruling administrative decisions, even on occasion being in the minority and trying to strike laws. Now, they have been criticized.
For instance, in a recent decision, one of the dissenting Justices who sought to uphold an act of Congress said, what basis is there in any of those sources, talking about the majority's history, for concluding that it is the members of this Court, rather than the elected representatives of the people, who should determine whether the Constitution contains the unwritten rule that the Court announces today.
In other words, the dissenter says to this majority, what gives you the right in this ambiguous area, because nothing is explicit, to overrule what the elected officials have said? That same dissenting Justice said in a footnote, referring to what he thought was shoddy history and poor logic on the part of the majority, he said, ``If this sort of unexplained congressional action provides sufficient historical evidence to support the fashioning of judge-made rules of constitutional law, the doctrine of judicial restraint has a brief, though probably colorful, life expectancy.'' Here again, the dissenting Justice says to those in the majority, you are making a mockery of judicial restraint.
Well, in this particular case I agreed with the dissenting Justice on the substance, I am talking about Justice Stevens, he wrote the dissent, and he was dissenting in the Brady bill case. Justice Stevens wanted to uphold the Brady bill. He wanted to uphold the mandate that we ask local officials to cooperate in a very small way, but he was overruled. And while I disagree with the majority here, I want to pay tribute to Justices Scalia and Thomas for not being in any way deterred by criticism of judicial activism. Indeed, in the past term of the Supreme Court, Justices Scalia and Thomas voted to invalidate more acts of Congress than all but one of the Justices. Justice Kennedy I think tied them.
For instance, Justices Scalia and Thomas said, when this Congress passed the Communications Decency Act in an effort to keep indecent material off the Internet, which did seem to me to violate the Constitution. I voted against it. I was one of a small number of Members who voted against it. Over 400 Members of this House voted for that bill. But were Justices Thomas and Scalia deterred from declaring it unconstitutional? No, they were not. Four hundred Members may have said we want to keep indecent material off the Internet. I think they misread the Constitution, and Justices Scalia and Thomas joined in the opinion that invalidated that.
When an overwhelming majority of this Congress passed the Religious Freedom Restoration Act to protect people's religious practices from laws that might unfairly impinge on them, there I was in the majority. I thought the Constitution allowed us to do it. Justices Thomas and Scalia disagreed.
Now, I disagree with their disagreement. I think they were wrong on the substance, but I do have to pay tribute to the fact that they said an overwhelming majority of people in Congress think it is protecting people's religions, but when two of the Supreme Court Justices disagree and we will strike that law down and strike it down they did. I disagreed with them also, as I said, on the Brady bill. That was passed by a narrower majority. Very ambiguous language. They were in the majority to strike it down.
When the Securities and Exchange Commission, a Federal agency due certain amount of deference from the courts in statutory interpretation, tried to uphold the current practice regarding insider trading, a man who had benefited from insider trading, illegitimately in my opinion, brought a lawsuit and the Court 6 to 3 upheld the Securities and Exchange Commission. But among the three who said no, we the Justices will overrule this Federal agency, we will not show them that deference, were Justices Scalia and Thomas.
When Congress passed the must-carry rule as part of the Telecommunications Act, when we mandated that TV stations and cable companies carry broadcast stations, Congress upheld that. So the Court upheld that by 5 to 4. In the minority were Scalia and Thomas.
So I simply want to call note to the fact that these two justices have repudiated critics of Judicial activism and have been as active in this past term as any Justices in our past history.
Mr. Speaker, I include for the Record examples of judicial activism on the part of Justices Scalia and Thomas.
Examples of Judicial Activism on the Part of Justices Scalia and Thomas
1. They both voted to declare unconstitutional part of the Brady bill regulating the sale of handguns.
2. They both voted to declare unconstitutional the Religious Freedom Restoration Act, which sought to protect the rights of religious people where laws were passed that impinged on their religious practice.
3. They both joined in the decision holding the Communications Decency Act unconstitutional. The CDA sought to ban indecent material from being sent on the Internet.
4. They both voted to declare unconstitutional the federal law requiring cable TV systems to carry the signals broadcast by local over the air stations. The law was upheld, however, because they were part of a four member minority.
5. They were again in the minority in seeking to overrule the decision of the Securities and Exchange Commission as to who is covered by the statute prohibiting insider trading. The SEC has taken a broad view of the coverage of this statute, and Justices Thomas and Scalia were in a 6 to 3 minority in seeking to overrule the SEC.
6. Justices Scalia and Thomas continue to join three others to form a majority holding that the Voting Rights Act has severe constitutional defects and have continued to strike down voting districts created under the Voting Rights Act--at the time often at the urging of the Bush led Justice Department as well as groups representing African Americans.
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