On President Reagan's Birthday - His Views on the Judiciary

Today would have been President Ronald Reagan's 107th birthday.  To honor his legacy and the immense impact he had on our nation's courts through his judicial nominees, here are some of his views on the judiciary, the rule of law, and the Constitution.

President Reagan, Speech at the Investiture of Supreme Court Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia, White House, September 26, 1986:

[The Founders] settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. In the convention and during the debates on ratification, some said that there was a danger of the courts making laws rather than interpreting them. The framers of our Constitution believed, however, that the judiciary they envisioned would be "the least dangerous'' branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had "neither force nor will, but merely judgment.'' The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported. . . . 

Hamilton, Jefferson, and all the Founding Fathers recognized that the Constitution is the supreme and ultimate expression of the will of the American people. They saw that no one in office could remain above it, if freedom were to survive through the ages. They understood that, in the words of James Madison, if "the sense in which the Constitution was accepted and ratified by the nation is not the guide to expounding it, there can be no security for a faithful exercise of its powers.'' The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not -- as it is not -- will we have liberal or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people? And this is why the principle of judicial restraint has had an honored place in our tradition. Progressive, as well as conservative, judges have insisted on its importance -- Justice Holmes, for example, and Justice Felix Frankfurter, who once said, "The highest exercise of judicial dutyis to subordinate one's personal pulls and one's private views to the law.'' 

Chief Justice Rehnquist and Justice Scalia have demonstrated in their opinions that they stand with Holmes and Frankfurter on this question. I nominated them with this principle very much in mind. And Chief Justice Burger, in his opinions, was also a champion of restraint. All three men understand that the Founding Fathers designed a system of checks and balances, and of limited government, because they knew that the great preserver of our freedoms would never be the courts or either of the other branches alone. It would always be the totality of our constitutional system, with no one part getting the upper hand. And that's why the judiciary must be independent. And that is why it must exercise restraint.

President Reagan, Radio Address to the Nation on the Supreme Court Nomination of Robert H. Bork, October 10, 1987 (the day after Judge Bork withdrew his nomination to the Supreme Court):

Former Chief Justice Warren Burger, too, called the tactics used against Judge Bork disinformation but the real test is to the principles that were established by the Founding Fathers when they created the Constitution. The Washington Post columnist David Broder recently wrote: "To subject judges and judicial appointees to propaganda torture tests does terrible damage to the underlying values of this democracy and the safeguards of our freedoms." But despite these courageous words from a few individuals, many here in Washington closed their eyes to the wrong being done to the judicial process. . . . 

During his confirmation hearings, Judge Bork had given us all a national lesson in our legal tradition and the importance of judicial restraint-the belief of our Founding Fathers that it was the role of the judge to interpret the law, not to preempt the rights of the people and their legislatures by making the law. So, I could understand then why Judge Bork might choose to withdraw and simply return to the Court of Appeals. I wish you could have been there as Judge Bork explained his decision—as he looked me in the eye and said we must do not what was right or easy, for himself, but what was right for the country. . . . 

Judge Bork said a critical principle was at stake. He explained it this way, and again I quote: "Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially, according to law. But when judicial nominees are assessed and treated like political candidates the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of our judges, and to endanger the independence of the judiciary." . . . 

I agree with Judge Bork that there are no illusions. Our judges should be faithful to the written Constitution, the bedrock of our liberties. Those selected for the Supreme Court must be aware of all points of view and their decisions based on government by the people.

Former Attorney General Ed Meese, "Reagan Upheld the Rule of Law," February 3, 2011:

As he was running for president, Ronald Reagan raised the issue of “judicial activism” among the federal courts. He noted that too many judges were substituting their own personal views, policy preferences and political ideas for what the Constitution and the statutes enacted by Congress actually provided. Many legal scholars and knowledgeable observers were concerned that we were no longer a government of laws, but a government where the result depended on who the judge might be. This was particularly true in such cases as religious liberty, freedom of speech, economic affairs and criminal justice. These were matters that most affected the personal lives of American citizens. 

Most important to the president was the fact that judicial activism violated the basic constitutional principles of limited government and of checks and balances. When the federal courts turned from interpreting the law to making the law or improperly interfered with the actions of the executive branch, they usurped the powers of the other two branches. 

Ronald Reagan was committed to restoring the concept of constitutional fidelity. Judges, he maintained, should base their decisions on the original meaning of the Constitution and of the federal statutes. He explained that the Founding Fathers had given careful thought to the role of the federal judiciary and thought that it should be independent and strong, but with its powers confined within the boundaries of a written Constitution and laws. 

He considered this principle, known as judicial restraint, critical to the fair administration of justice. He said that the courts, like the Constitution itself, must not be liberal or conservative, but solely focused on following the law and preserving justice.

Senator Orrin Hatch, Speech to the RNLA, May 6, 2011:

Make no mistake, such things as moral reflections, personal impressions, or theoretical opinions are not enough to protect our liberty.  Judges who take an oath to support and defend the Constitution, but who believe that they determine its meaning, are really swearing to support and defend themselves.  Judges, and not the Constitution, become the supreme law of the land if they control what the Constitution really is. 

President Reagan sought to reassert that the Constitution embodies inescapable and enduring mandates established by the people, and to appoint judges who believed the same.   His predecessor, Jimmy Carter, is the only full-term President in American history not to appoint a Supreme Court Justice, which perhaps is proof that there is indeed a God who is looking out for us after all.  After spending four years on the Judiciary Committee examining President Carter’s lower court nominees, I spoke loudly in the 1980 campaign against what I called avant garde liberal activists who will legislate from the bench.  President Reagan was elected promising to appoint a very different kind of judge.

Happy birthday, President Reagan.  We are still reaping the legacy of your deep respect for the rule of law and the written Constitution as reflected in the judges you nominated to the federal bench.  And the principles you outlined are once again being honored and followed in the White House as President Trump seeks to nominate judges committed to the rule of law, not of unelected judges.