Is the Supreme Court Destroying America?

This is a partial transcript of "The Big Story With John Gibson," March 15, 2005, that has been edited for clarity.

(BEGIN VIDEO CLIP)

JUDGE ANTONIN SCALIA, SUPREME COURT JUDGE: I'm not urging courts to do nothing. I'm urging them to do what the Constitution says they can do and not to become, I don't know, grand philosophers to redesign the Constitution itself.

(END VIDEO CLIP)

ANDREW NAPOLITANO, GUEST HOST: A rare, on-camera appearance by Supreme Court Justice Antonin Scalia (search).

Mark Levin is the author of, "Men in Black: How the Supreme Court is Destroying America," which if I have it correctly, was number three on The New York Times bestseller list. Congratulations, Mark. He's also a veteran court watcher.

Now, I know you feel strongly about this, as do a lot of us that watch the court for a living, but are judges' personal opinions getting in the way of the law?

MARK LEVIN, AUTHOR, "MEN IN BLACK": Yes, I think so, Judge — particularly at the appellate, federal appellate and Supreme Court level. All you have to do is read their opinions. They're telling you, "We're going to look at the law in India, in Britain and Canada, and we're going to make decisions based on that. We're going to do phony polling to figure out what the majority wants."

This is not the job of a judge. You are a judge — you're supposed to sit there, give the parties a fair break, objectively look at the briefs and the facts before you try and apply the law and adjudicate in almost a ministerial fashion, to the extent that you can. You're not supposed to be an advocate for a cause.

NAPOLITANO: When you and I went to law school I think the idea of American federal appellate judges looking to foreign law or looking to polls to decide how cases should be determined was so alien to us, it wasn't even anything we would consider.

When did this start, and how did it come about, and who's doing it?

LEVIN: Well, I don't know the exact day, but it's been growing in the homosexual sodomy case, Lawrence v. Texas. The same justice who wrote the juvenile death penalty case the other week, Anthony Kennedy, also looked at foreign law. It's been going on for a couple of decades.

But it's become very, very popular now. It's also popular in Europe, where the justices go to vacation or relax during the summer, meeting with other justices. Sandra Day O'Connor has even written about this in her book. They talk about the need to look at other societies; we can learn from other societies.

They are not supposed to learn from other societies. They are supposed to apply the law, the Constitution of the United States. We'll leave it to the senators and the congressmen to learn from other societies.

NAPOLITANO: Aren't they even violating their oaths when they look to other [societies]?

LEVIN: Yes.

NAPOLITANO: Their oath is to the Constitution and the laws written pursuant to it — not to what some foreign parliament has written about their constitution.

LEVIN: Well, you've hit the nail on the head. But what are we going to do about it? I don't see much action in Congress to be concerned about that.

I think what Congress does need to do, Judge, is start to hold hearings, not necessarily to punish anybody, but to deter them. They hold hearings on everything else: they're going to hold hearings on baseball and steroids, which they really have no authority to do anything about. Why not hold hearings on one of the branches of government — other than the executive branch, we call it the Judiciary — and find out what it is that's making some of these people tick? They're not gods, present company excluded, they're not viewed with massive wisdom and judgment beyond the rest of us. So what is driving them?

NAPOLITANO: All right.

But let me ask you this: don't we expect that certain judicial appointees will bring certain philosophies with them to the court? There is a reason Ronald Reagan appointed Antonin Scalia; there's a reason Bill Clinton appointed Ruth Bader Ginsberg: it's because each of those presidents trusted and liked and agreed with the way those judges think.

So, don't we expect that there will be some internal, normal, human, intellectual bias and that's why they're there?

LEVIN: I suppose, but I don't see a relativism here.

In other words, the role of a judge, whether appointed by a Republican, a Democrat or something in between, whether it conservative or liberal or something in between, the role of a judge should be clear. It should be the role that applies from the beginning of our history to today, regardless of the pedigree. And that role is to apply the law.

Otherwise, why are you there for life? Why are you unaccountable? Why are you selected in any event? Let's face it, Judge: nine Supreme Court justices, these are lawyers who won the lottery. You're talking about a nation of 300 million people and the fact that they won the lottery doesn't mean that they get to impose their personal policy preferences on the rest of the country.

NAPOLITANO: Why are the Democrats fighting so viciously in the Senate, to the point where they're threatening to shut down the Senate rather than to allow President Bush to have a vote, a simple vote, up or down, by the full Senate on some of his nominees?

LEVIN: Well, let's look at who we're talking about. We're talking about Ted Kennedy and Chuck Schumer and Barbara Boxer, who couldn't win anything on the national level. They've taken their party, in my personal opinion, into the dumper, so they can't get these things passed in the ballot box.

They talk about counting every vote. They obviously really don't mean it since they're putting all their cards on the unelected branch of government, the judiciary. And so, what they know, because what they helped cause, is that a lot of these justices are in fact, robed politicians. Just read their opinions: they're telling you what they think and why they think it.

NAPOLITANO: Is there any judicial activism that's good? Like judicial activism that desegregated the schools or got rid of laws against people of different races marrying each other?

LEVIN: Well, it's very funny because judicial activism cuts both ways. It also brought us slavery in the free territories in Dred Scott; it brought us the first big segregation case in 1896 in Plessy; it brought us the interment of Japanese Americans, it brought us abortion on demand...

NAPOLITANO: But does it ever bring us any good?

LEVIN: It does sometimes bring us good, but you know what ended segregation ultimately and the poll tax? It was the people. It was a popular uprising in the South. It was finally Congress that reacted to it and the president that reacted to it.

As far as I'm concerned, the Supreme Court — on an issue like segregation — set this country back for 60 years. That was the timeframe between Plessy and Brown vs. Board of Education.

The Supreme Court has a horrible record.

NAPOLITANO: Should we continue to have federal judges who are life- tenured, or should they have to pass some kind of a review after 10 or 15 years in office? You don't want to change the Constitution, do you?

LEVIN: Well, no, I do. Through the amendment process, I don't have any problem with that. That's a legitimate process.

Look, I think courts need to function, too. The question is what should they do. I favor amending the Constitution: one term, 12 years, and you're off. If judges and justices are going to act like politicians, there's no reason for them to serve for life. The reason they were serving for life was that the framers wanted them there was because they weren't political. Now they are.

NAPOLITANO: Mark, I trust you don't have any cases scheduled before the Court.

LEVIN: I've got a lot of them.

NAPOLITANO: Mark Levin, author of "Men in Black", which is rising on The New York Times bestseller list. Thanks very much, Mark.

LEVIN: Thank you, Judge.

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