"Judicial Activism: Assessing the Impact"

Testimony of Alabama Attorney General Bill Pryor
U.S. Senate Judiciary Committee
Subcommittee on the Constitution, Federalism & Property Rights
Washington, D.C. -- July 15, 1997



Mr. Chairman and Members of the Committee:

I appreciate your invitation for me to discuss what I believe is the most
important issue in contemporary American self-government: the role of the
judiciary. As you know, in constitutional and statutory interpretation, the
differences of opinion between conservative interpretivists, such as Justices
Scalia and Thomas, and liberal proponents of a so-called living constitution,
such as retired Justice Brennan, are sharp and profound. My purpose today is to
address common characteristics of judicial activism that, in my judgment,
demonstrate its threat to constitutional democracy.

In the Office of Attorney General of Alabama, I have witnessed three aspects of
judicial activism that burden our state government and our citizens everyday.
The first aspect is the use of the judiciary to restructure political
institutions in ways that invariably expand the size of government. The second
aspect is the judicial micromanagement of state governmental operations. The
third aspect is the revision of history to further an agenda that is hostile to
any acknowledgement of God in our public life. I will address each of these
aspects in turn.

The use of judicial power to restructure, and invariably expand, the size of
state and local governments has occurred in literally dozens of federal suits in
Alabama. Three years ago, a federal district judge in Montgomery entered a
judgment, with the approval of the Department of Justice, that restructured our
entire state appellate court system. Incredibly, the then Attorney General
consented to the judgment. The judgment created six new judgeships -- two on the
court of criminal appeals, two on the court of civil appeals, and two on the
supreme court -- at a cost of 1.8 million dollars a year to the taxpayers of
Alabama. The federal judgment also required that these judgeships not be filled
by statewide election, as required by the Constitution of Alabama, but by
gubernatorial appointment from three nominees selected by a five member
nominating commission. Three members of the nominating commission were required
to be African-American. Thus, this judgment sent the destructive message that
race somehow matters in the administration of justice.

All of these requirement were imposed in the name of the Voting Rights Act of
1965. An important element of this litigation was the abuse of federal power by
the U.S. Department of Justice under Section 5 of the Act. The act, of course,
was passed to empower minority voters in the exercise of the franchise, but the
federal court turned the act on its head and wielded its judicial power to
deprive all voters of the right to select several public officers. Fortunately,
this unlawful judgment was reversed by the Eleventh Circuit Court of Appeals
last year based on arguments advanced by then Attorney General Jeff Sessions,
who assigned the case to me.

The judgment of the district court, however, was based on earlier ruling of the
same district court that restructured and expanded the size of several local
governmental bodies, particularly county commissions and school boards. Those
earlier rulings are now being tested in several cases, but there is resistance
from several of those officials who now hold the judicially created offices.
A less dramatic but equally intrusive abuse of judicial power involves judicial
micromanagement of governmental operations. Two weeks ago, I filed motions on
behalf of the Commissioner of the Department of Corrections in seventeen
different federal cases in which the courts regulate the daily operations of
state prisons and county jails. These orders require a host of privileges for
prisoners that, in some instances, far exceed the rights of free citizens,
including movies every Friday and Saturday nights, cable television, basketball,
ping pong, softball, horeshoes, fitness training, hourly visits from law clerks,
extensive law libraries, and climate controls with an allowed range of inside
temperatures for summer and winter. When these orders were entered, the courts
made no findings that the practices about which the prisoners complained were
unconstitutional. Congress recognized the scope of this problem last year when
it passed the Prison Litigation Reform Act, which greatly enhances our ability
to undo these intrusive orders. Our state government still faces, however,
several other cases in which federal courts intrude everyday into the operations
of state departments and local governments.

A third but different problem of judicial activism is the revision of our
constitutional history to advance a political agenda that is hostile to any
acknowledgement of God by government. For the last two years our state has
witnessed a heated battle to banish a display of the Ten Commandments from a
state courtroom and to end a longstanding practice of invocations to begin the
sessions where jurors are administered their oath. It is astounding that this
effort can receive such serious attention when one considers the lonstanding
tradition of acknowledgement of God by government. For example, there are at
least three different depictions of the Ten Commandments in the courtroom where
the Supreme Court of the United States hears oral arguments and every session of
every federal court begins with the invocation, "God save the United States and
this Honorable Court." Yet activist federal court decisions make this threat to
our state courtroom traditions real.

In addressing the problem of judicial activism, I urge this Committee to focus
on at least three remedies available to your branch in defending your right to
make federal law. First, the importance of your role of advice and consent in
judicial nominations cannot be overstated. You should question nominees to
ensure their fidelity to the right of the people to govern themselves. Second,
your ability to monitor and curtail abuses of judicial power, as was done in the
Prison Litigation Reform Act of 1996, can greatly assist officials of state and
local governments, who must comply with burdensome and expensive decrees that
often impede the performance of important state functions. I encourage you to
consider seriously, for example, the repeal or amendment of section 5 of the
Voting Rights Act, which is an affront to federalism and an expensive burden
that has far outlived its usefulness, and consider modifying other provisions of
the Act that have led to extraordinary abuses of judicial power. Finally, you
must continue to lead a public discussion about judicial activism and the
erosion of self-government, as you are doing today in this hearing. In that
vein, I urge you to adopt the resolution of Senators Shelby and Sessions that
supports the display of the Ten Commandments in public buildings.

Again, I thank you for allowing me this opportunity to testify about this
important subject.