Making Public Policy

It is said that nature abhors a vacuum.

While political observers complain about congressional gridlock, and policy wonks decry the absence of meaningful policy debates by our elected representatives, the vacuum is being filled by the courts–or more accurately, by those who are using the courts to achieve policy goals they cannot achieve through the legislative process.

Before you mutter "So what else is new?" I am not referring here to the predictable charges of "judicial activism" leveled at decisions that one group or another doesn’t like. When the American system works properly, our legislators pass laws that, if challenged, must be reviewed to determine whether they are consistent with the constitution. Invalidating popular measures inevitably elicits charges of "legislating from the bench." Recently, however, we are seeing something different–and troubling.

On February 8, the Fourth Circuit Court of Appeals handed down a decision that substantially erodes the precedent set thirty years ago in Miranda v. Arizona. Miranda held that persons in custody must be read their rights before being questioned. The Fourth Circuit ruling was the culmination of a long-term strategy pursued by a Utah law professor and a conservative legal foundation bent on reversing Miranda. The foundation submitted amicus (friend of the court) briefs in carefully selected cases in several circuits, targeting those where they felt the judges might be favorable to their argument. They finally convinced a divided panel to address an argument that neither party to the litigation had raised or briefed.

Conservatives used a similar approach in the battle over who "owns" the interest on attorney trust accounts, finally winning a ruling that states’ use of such interest to support legal services for the poor amounts to an illegal taking of client funds.

Conservatives aren’t the only ones playing this game. The recent, high-profile lawsuits against tobacco companies and gun manufacturers are similar attempts by those with a more liberal agenda to make public policy through litigation rather than legislation.

Whatever one thinks about the results of these lawsuits, the tactic is troubling. We have historically not allowed our courts to "declare" what the law should be in the absence of real parties with real interests at stake. We have insisted that public policy be made in appropriate political arenas, where the interests of all citizens can be represented. Just as our constitutional system confers upon individuals rights that cannot be abridged by majority vote, it confers upon the majority the right–and duty–to make public policy decisions through elected representatives whose deliberations are public and whose actions can be rewarded or punished at the next election.

The increasing use–or misuse–of the courts to make public policy reflects a deep disenchantment with Congress and the usual channels of political activism. It should be a wake-up call to those in the legislative branch who persist in ignoring the people’s business in favor of political games that are peripheral to the national interest.