NCPA - National Center for Policy Analysis

Supreme Court Expanded Legislative Role

January 7, 1997

Former U.S. Attorney General Edwin Meese III contends that the Supreme Court over several recent decades has been making law rather than interpreting it. Meese charges that the federal judiciary has strayed far beyond its proper functions and that in no other democracy in the world do unelected judges decide as many vital political issues as they do here.

Among the cases he cites as examples of judicial activism:

  • A 1979 case, United Steelworkers of America vs. Weber, which allowed private employers to establish racial preferences and quotas.
  • In 1970, Goldberg Vs. Kelly made welfare entitlements a form of property -- with the beneficiaries having the right to receive benefits, even if fraudulently, until after lengthy and costly hearings -- with no requirement that they reimburse the government if their claims are denied.
  • The 1961 Mapp Vs. Ohio ruling hampered criminal prosecution by requiring state courts to exclude from criminal cases any evidence found during an "unreasonable" search and seizure.
  • In 1971's Griggs Vs. Duke Power Co., the Court found that companies could not require job applicants to possess high school diplomas and pass a general aptitude test because that might disqualify a disproportionate number of minorities.

Meese urges Congress to confine the Court to its traditional role by:

  • Weeding out activist judges in the confirmation process.
  • Strip the American Bar Association of its special role in the selection process.
  • Exercise its power to limit the jurisdiction of the federal courts.
  • Through the states, pressure Congress to amend the Constitution to allow the states to ratify constitutional amendments without the approval of Congress.

Finally, Meese wants to stop the federalization of crime and the expansion of litigation in the federal courts.


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