Q & A - Judicial Activism
Understanding judicial activism and what to do about it.
Introduction
"Judicial activism" is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and "legislate" from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.
For example, when a court "finds" a "right of privacy" hidden in the "penumbras" and "emanations" of the Constitution,1 and later expands this "right of privacy" into the right to abortion;2 that's judicial activism. Here are some other examples:
- When a court rules that the First Amendment ("Congress shall make no law ... ") suddenly means that "the states shall make no law" and creates a new constitutional "wall of separation" between church and state;3
- When a court rules that "evolving constitutional standards" mandates a right to same-sex marriage, contravening 200 years of state law and centuries of tradition.4
Q: What is a judge's proper role?
A: The proper role of a judge is to be an umpire. A baseball umpire calls balls and strikes, but doesn't change the rules of baseball in the process. Applying the analogy, a judge (umpire) applies the law (rules of baseball) to the facts of a particular case (a pitch, a runner tagged out, a fly ball caught or missed) to arrive at a judgment (strikes, outs, foul balls, etc.).
Example: A jury finds that Joe Smith robbed a bank on a certain date. The judge then applies the rules, i.e., a criminal statute passed by the legislature, to arrive at a judgment, i.e., jail time. Appellate court judges review cases to determine that the trial judge applied the law correctly. Sometimes courts are asked to examine the law itself to ensure that it does not run afoul of the Constitution in any way.
Q: That sounds simple. So how does judicial activism enter the picture?
A: Judicial activism occurs when a judge wants to change the rules of the game, a constitutionally granted responsibility that belongs only to the legislature. For example, prior to 1973, abortion laws were left up to the states to decide for themselves, as an exercise of each state's "police power."5 In the 1973 Roe v. Wade decision, however, the Supreme Court, building upon the judicially created "right of privacy" announced in its Griswold decision6 several years earlier, created a new right to abortion on demand applicable to all 50 states. What had been the sole prerogative of the states' legislatures was now pre-empted by a judicially created federal mandate, unappealable and unchallengeable except for a Constitutional amendment.
Courts (especially the Supreme Court) have engaged in changing the rules (i.e., making law from the bench) at various times in our nation's history, but in the last 50 years the pace of judicial activism has increased alarmingly.
Q: Surely the Framers never even thought about abortion, same-sex marriage or Ten Commandments displays when they drafted the Constitution. Wouldn't the Framers want us to adapt to our constantly changing society, and not be forever bound by an outdated 200-year-old document?
A: Yes, the Framers anticipated and provided for change. Very simply, the first way we adapt to changing times is obvious: we make new laws. We can also revise or revoke outdated laws to meet today's exigencies. We elect representatives who are accountable to us, and if they don't perform the way we ask them to, we remove them via the election process. Although judges should stay out of purely legislative issues, they don't. Even the Supreme Court can't resist revising statutes when it sees an opportunity.7
The second method the Framers provided to us for adapting to current societal needs involves the Constitution itself.
Q: So what is the method the Framers envisioned for changing and adapting the Constitution to the times?
A: It's called a constitutional amendment. The process is this: Congress passes a proposed amendment by a two-thirds majority, and then the amendment must be approved by three-fourths of the states in order to become law. Since the Constitution and Bill of Rights (the first 10 Amendments) were ratified by the states and became the law of the land, the Constitution has been amended 17 times. The last amendment, the 27th Amendment, was ratified by the states and became law in 1992.
Q: What's wrong with letting judges play that role as well?
A: The problem is that "we the people" are left out of the equation altogether. Federal judges, for example, are appointed for life and can be removed only by impeachment proceedings in Congress. They are hardly "accountable" for their actions in the same manner as our elected representatives, who must stand for re-election on a regular basis. Should one, or three, or even five unelected and unaccountable judges decide for all of America that the words "under God" should not be in the Pledge of Allegiance?
Another reason judges should not be allowed to change the Constitution is that they can change a law today based on a fleeting feeling. A constitutional amendment, on the other hand, is a slower process that ensures that changes to the Constitution are not done without deliberation, public debate and supermajority (i.e., two-thirds) approval.
Q: But I've heard that liberal, activist courts are the defenders of minority rights.
A: Absolutely false! Let's look at the issues of slavery and segregation.
•In 1820, Congress passed the Missouri Compromise and outlawed slavery in the new territories created in that legislation. The Supreme Court's 1857 Dred Scott decision overturned the anti-slavery portions of the Missouri Compromise and affirmed that slaves were indeed "property."
•In 1865, Congress and the states (not the courts) passed the 13th Amendment, which abolished slavery.
•In 1875, Congress banned all racial segregation. Yet the Supreme Court in 1883 held that legislation to be unconstitutional.8 Then, in 1896, the Supreme Court held that "separate but equal" facilities were valid under the 14th Amendment,9 another amendment passed in the wake of the Civil War in response to slavery. It took the Supreme Court almost 60 years to reverse itself on that issue, declaring that "separate but equal" was "inherently unequal." That case, Brown v. Board of Education,10 is almost always used (incorrectly, as history teaches us) to support the notion that the Supreme Court is the protector of civil rights.
Q: Is this problem of judicial activism involved in the current Senate conflict over the president's judicial nominees?
A: That is precisely the issue. The conflict is over what type of judge to appoint to the federal bench. Shall we appoint judges who stick to the Constitution and the Framers' original intent when interpreting and applying statutes? Or shall we appoint judges who rewrite the Constitution according to their own views, which often are contrary to the clear intent of the Framers, or to legislatures that make the laws, or to hundreds of years of common law on issues like abortion, same-sex marriage, and public-square expressions of our faith heritage?
Q: Why do Supreme Court appointments seem to create the most heated debates?
A: The Supreme Court is the final word in our federal court system and therefore the final word on whether a statute or other legislative or governmental action (either state or federal) conflicts with our Constitution. For better or worse, its decisions impact every American's daily life. Supreme Court activism creates a ruling oligarchy where the elite few govern the many by judicial fiat (an arbitrary order or decree).
Q: How can we ensure that activist judges are not appointed to federal and state courts?
A: Federal judicial appointments are for life. To ensure that constitutional originalists (judges who apply the Constitution based on the original meaning given to it by the Framers) are appointed to the bench, we should demand accountability from our president, who nominates judicial candidates, and from our senators, who are charged with voting for or against the judges the president nominates. We can vote for senators who will approve only judges who will adhere to the Constitution's original intent. We can make certain those judges live up to their responsibilities by demanding impeachment of judges who act unconstitutionally through their activism.
Depending on the state, some state judges are appointed, some are elected, and some are appointed for a term and then run for "retention," which gives them another term. Voter education on the philosophy of judicial candidates is the key. Find out how judges are appointed or elected in your state, and demand information and accountability.
Since the 2002 Supreme Court decision in Republican Party of Minnesota v. White,11 states holding elections for judges are required to respect judicial candidates' First Amendment rights to speak to voters concerning their views on all sorts of issues. Many state public-interest organizations are now publishing voter guides for state judicial candidates who respond to questionnaires. If you can't locate one of those voter guides,12 ask the candidate directly, and refuse to vote for any candidate who refuses to answer questions.
1 Griswold v. Connecticut, 381 U.S. 479 (1965).
2 Roe v. Wade, 410 U.S. 113 (1973).
3 Everson v. Board of Education, 330 U.S. 1 (1947).
4 Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003).
5 "Police power" is the inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security.
6 Griswold v. Connecticut, 381 U.S. 479 (1965).
7 For example, in Jackson v. Birmingham Board of Education, 2005 WL 701076 (Mar. 29, 2005), Justice O'Connor "created" a claim and a remedy for "retaliation" that she and the liberal majority of the Court (O’Connor, Stevens, Souter, Breyer and Ginsburg) felt was missing from Title IX that is found in certain employment discrimination statutes such as Title VII. In fact, Title IX does not provide for "retaliation" claims. The fact that Congress chose to omit this from the statute did not deter the Court majority from effectively amending Title IX to now provide it.
8 Civil Rights Cases, 109 U.S. 3 (1883).
9 Plessy v. Ferguson, 163 U.S. 537 (1896).
10 347 U.S. 483 (1954).
11 536 U.S. 765 (2002).
12 To view a sample voter guide taken from Georgia’s 2004 judicial elections, <click here>.
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