Some conservative commentators have gotten way ahead of themselves in predicting that the appointment of a couple of conservative justices to the Supreme Court will mark the end of a long period of judicial activism in this country.
The recent confirmation of John Roberts as chief justice and the expected confirmation of Samuel Alito next year will certainly make a difference, but nothing good or permanent will happen unless and until Congress and the state legislatures get busy taking back some of the authority they have already surrendered to the courts.
The national landscape is littered with examples of instances in which legislative bodies did nothing in response to court decisions that twisted the Constitution or a statute in order to achieve a specific outcome.
In fact, it’s rare that a legislative body is sufficiently offended to actually respond to an outrageous decision.
Such an exception is now occurring in Congress, where there is an attempt to roll back this year’s decision by the U.S. Supreme Court in a condemnation case out of New London, Conn. The court ruled that New London, merely in order to increase its tax revenues, could condemn private homes and businesses and effectively give the land to a developer.
Members of Congress want to re-establish the principle that private property should only be taken for “public use” and that the government has no business serving as the agent of private interests.
The congressional reaction is entirely laudable, but there ought to be a similar response in Congress or the state legislatures every time a court gets too adventurous.
Recent cases from California and Washington illustrate the need for something more than anger or frustration.
In the California case, the 9th Circuit Court of Appeals upheld the right of a local school district to ask sexually loaded questions of children as young as 6. The questions were part of a survey intended to uncover “barriers to learning.” Parents were not told that the survey included questions like whether the youngster thought “about touching other people’s private parts.”
A group of parents sued, contending the district violated their right to control “information regarding sexual matters given to their children.”
The court ruled that there is no “fundamental right” of parents to be the “exclusive provider” of such information.
The initial reaction to this decision was that the ruling was just another loony opinion from the 9th Circuit, the most reversed circuit court in the nation, and that it must be appealed to the U.S. Supreme Court.
Perhaps an appeal is in order, but why should the nation have to wait for months or years to re-establish the notion that school districts shouldn’t be questioning 6-year-olds about sex?
There are a couple of ways this could be done. The California legislature could make it clear that parents have a right to shield their children from sexual material, certainly at least through the elementary grades. School districts could reaffirm policies that require parents to give permission before their children are exposed to sexual material or instruction.
After all, the court simply said that local school districts could question children, not that they should. That policy determination rightly still belongs to the legislature and to the people.
The second case originated in Washington, where that state’s Supreme Court held that an unmarried lesbian is a “coparent” who may be entitled to court-ordered visitation with a child she helped raise for six years. The visitation, the court said, might be ordered in this case even though the plain language of the Washington statute doesn’t seem to provide for it. The biological mother of the child has since married the biological father, but the court’s ruling means that the child will now have three legally recognized parents.
In venturing into this thicket, the Washington court admitted it was making up the law as it went along. It said, “Our legislature has been conspicuously silent when it comes to the rights of children who are born in nontraditional families.”
The silence should end. State legislatures, including the one in Colorado, should more clearly define terms like “marriage” and “parents” and “families.”
It’s a simple choice. If the legislatures don’t do it, the courts surely will.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
