WASHINGTON – Whether the issue is liberal or conservative, the Supreme Court of the United States is increasingly willing to step on the toes of Congress to judge public opinion and invalidate federal laws, a panel of legal experts argued Tuesday in a review of the court's 2001-2002 term.
"This court has been quite willing to strike down acts of Congress. It's as if Congress can't get any respect," said Ken Starr, the former U.S. solicitor general and special prosecutor, who spoke on the panel at the conservative Heritage Foundation.
Panelists said that the court struck down three federal laws in its most recent term, which ended June 27, and that over the past eight years, 32 laws have been invalidated. This number makes even the Warren court, remembered for its left-wing activist rulings in the 1960s, look quiescent.
"Even in the Warren court, an average of only one federal law per year was struck down," said Akhil Amar, a professor at Yale Law School. "The court is saying we will decide what the states will do, and we won't let Congress go beyond what we do."
Legislating From the Bench
One of the key rulings of the term was Atkins vs. Virginia, in which the court ruled that it was unconstitutional to execute mentally retarded prisoners. Thirty states already prohibited the practice, and 15 others in practice did not carry out such executions. In its ruling, the Supreme Court took the bold step of asserting the practice had become anathema to society and against judicial consensus as a whole.
In doing so, according to Paul Rosenzweig of the Heritage Foundation, it short-circuited the legislative process, which normally is entrusted with making laws that concur with local public opinion. As in Roe vs. Wade, the 1973 Supreme Court decision that made up a right to an abortion, the court this term increased its power by stating it had the authority to define the ethics of the nation as a whole, he said.
"The court pre-empted an ongoing dialogue by issuing a final determination on the issue, removing the right of the people to decide through their legislative process. Here is a clear case of the court leading society rather than following it," he said.
Among the acts of Congress the court ruled unconstitutional this session were two involving freedom of expression. The court struck down a 1996 federal law aimed at preventing child pornography, judging it was too broad and infringed upon protected speech. In another case, the court ruled it was unconstitutional for the federal government to ban the advertising of drugs mixed in local pharmacies.
Some of the rulings this term also favored states' rights over federal laws, with the court carefully outlawing those acts it felt overshadowed state authority. But, in an apparent contradiction, it showed no such hesitation in imposing its own federal authority on states, Rosenzweig said.
With Congress increasingly accepting presidential leadership since Sept. 11, the overall picture is of a legislative branch losing ground to an aggressive executive and a robust court, some panelists said. They said that as post-Sept. 11 cases involving privacy and national security begin to come before the court next term, tensions between the executive and the judicial powers will be something to watch.