In Men In Black, Landmark Legal Foundation director Mark Levin shows how the American judicial system, led by the U.S. Supreme Court, is seizing political power from duly elected representatives and is effectively undermining the United States Constitution. His understanding of the role of the courts in American society is seasoned with what the author refers to as his "originalist" reading of the Constitution. Originalist judges, he insists, stick to the clear meaning of the laws while "activist" judges flout them. Levin claims that activist judges have taken over school systems, implemented their own preferences in private employment decisions, brazenly ordered state and local governments to provide welfare benefits to illegal aliens, banished religion from public discourse, and ordered public officials to raise taxes, all despite the fact that there is no constitutional basis for any of these actions. Men in Black is not a dense legal tome, nor did Levin intend it to be. It is a primer on the Supreme Court, written for a popular audience that is engaging, timely, and readable. Unfortunately, the author shies away from challenging his book's conservative target audience, neglecting to show that many of today's supposed conservative jurists are too often willing to engage in the kind of unprincipled activism that Levin condemns.
In Levin's view, the history of the Supreme Court has been one of a continuous usurpation of power, a disregard of constitutional principles and a relentless pursuit of influence. This self-aggrandizement began when the Court announced a principle of "judicial review" in Chief Justice John Marshall's landmark Marbury v. Madison decision. As Levin shows, the U.S. Constitution makes absolutely no mention of the concept of judicial review. The Constitution simply specifies that in cases of conflict between state and federal law, the federal law was supreme in every circumstance. Marbury v. Madison was not a judicial ruling based on a clear understanding of the law, Levin argues, but a bitter personal struggle between political opponents. The ironic tragedy of this mistaken ruling was that it mired the Court ever more deeply in partisan political struggles, which Levin traces throughout subsequent American history down to the present day.
The author is at the top of his game when discussing the role of the courts (both state and federal) in the disputed 2000 presidential election. While readers might quibble with a few points, he demolishes the argument that Al Gore actually "won" the election. Levin reviews the pertinent Florida election laws and concludes "The Florida Supreme Court, however, disregarded these laws in favor of a desired outcome: the election of Al Gore. The U.S. Supreme Court intervened to bring an end to the Florida Supreme Court's obvious manipulation of the ballot counting process." The Court made the right choice, he argues, when it reigned in a lawless Florida court, but Levin criticizes the process by which the Supreme Court chose to intervene. In fact, Levin contends that "the three originalist judges on the U.S. Supreme Court, Chief Justice Rehnquist, and Justices Antonin Scalia and Clarence Thomas, were not able to assemble a majority of the court on the straightforward question of whether the Florida Supreme Court usurped the authority of the Florida legislature in ordering standardless recounts past the federal deadline." Levin argues that the Court's intervention in the case on equal protection grounds was ill-advised and ultimately set a dangerous precedent. "The best decision would have been no decision," he insists, because the Court's action has opened a Pandora's Box full of future election challenges. The shocking spectacle of lawsuits filed before the 2004 election and the Kerry campaign's shameful activities on election night itself certainly validate Levin's warning.
Levin's analysis is less sure in his chapter on "Restoring The Constitution." He rightly chides our government's executive and legislative branches for their complicity in the judiciary's power grab, and goes on to spell out the constitutional remedies available to the legislative branch, which could be used to restrain the imperial judiciary. But Levin never addresses the presidential prerogative to interpret the Constitution invoked by Andrew Jackson and Abraham Lincoln that seems more in keeping with his complaints about "judicial review." Moreover, Levin never explains why, if the executive and legislative branches have meekly surrendered power to the courts, would they now recover their nerve and move to restore a proper constitutional balance. Yet he seems to think its possible, evidence to the contrary notwithstanding!
The concrete remedies Levin discusses are generally uninspiring. Impeachment or otherwise disciplining rogue federal judges offers little hope for reform. Likewise, Levin's proposals for a "legislative veto" over court decisions, or the possibility of holding federal judges to fixed terms of office would seem unwise as well as a political impossibility. But Levin's self-described "potent short-term weapon to beat back an obstructionist minority" through the power of recess appointment to the federal courts offers some hope. The president has the power to fill vacancies that occur during the Senate's recess period with an appointment of this sort lasting until the next congressional session's expiration. Presidents have used this power to fill twelve Supreme Court vacancies in the past, appointing Earl Warren, William Brennan, and Potter Stewart among others.
Of course, it remains the president's responsibility to nominate sound candidates, as the public will be reminded again this year thanks to Justice O'Connor's retirement, and one or two more expected soon. Those who take the Constitution seriously all agree that judges must first consider the original intent of the men who framed and ratified the Constitution. But what exactly is the content of that original intent? Levin fails to point out that the founders were not moral relativists, legal positivists, or simple majoritarians like even many of today's most well-known conservative jurists. President Bush has a difficult challenge ahead of him, but we must hope he remains steadfast in nominating jurists who recognize that the Constitution must be interpreted in accordance with the self-evident truths of the American Founding.