That was the starting point for a lecture at Miami Law this week by Professor Geoffrey Stone, a leading constitutional scholar and the Edward H. Levi Distinguished Service Professor at University of Chicago Law School. The lecture was part of a series named in honor of John Hart Ely, a member of the Miami Law faculty from 1996 until his death in 2003 and renowned for his authorship of Democracy and Distrust: A Theory of Judicial Review (Harvard, 1980).
In was during the presidency of Richard M. Nixon – who had the rare opportunity to appoint four conservative Supreme Court justices – that the notion of judicial restraint took hold, Professor Stone said. Such restraint, which implied not altering established laws or lower-court decisions except in extraordinary circumstances, was intended to counter years of what he called "the wild west of judicial activism run amok." The problem with it, he went on, is that the framers of the Constitution "clearly intended judges to take an active role."
Professor Stone said he is not a fan of the current Supreme Court, which is "in no way committed to the principle of judicial restraint" and, to prove it, has "invalidated more laws than the Warren court." He cited the decisions in Bush vs. Gore and Citizens United vs. Federal Elections Commission, among others, as examples of the court's "pure political predilections."
"I know that's a harsh statement," Professor Stone said. Nevertheless, he continued, some of the current Supreme Court's actions display "the most cynical and most manipulative use of the Constitution."
Professor Stone was introduced at the lecture by Miami Law Associate Professor Mary Anne Franks, who knows him well from her days as a Bigelow Fellow and Lecturer in Law at Chicago. "That was the nicest introduction I've ever had," Professor Stone remarked. The crowd was welcomed by Miami Law Dean Patricia D. White, who was described a few minutes later by Professor Stone as "one of the real leaders of American legal education."
"You're very fortunate to have her here as your dean," said the professor, who met Dean White a few years ago when she was dean of the Sandra Day O'Connor College of Law at Arizona State University and she invited him to speak there.
Professor Stone also thanked Leonard Abess, the chairman of the University of Miami Board of Trustees and a "very dear friend and former fraternity brother from over 40 years ago." Professor Stone said that Abess and his wife, Jayne, were "instrumental in welcoming us here and showing us hospitality."
"I really want to thank the two of you for making this possible," the professor said.
