Issues 2012

The Issue

The Founders envisioned the judiciary as the “least dangerous branch,” but activist judges have transformed the courts into policymaking bodies that wield wide-ranging power reaching virtually all aspects of American life. Rather than fulfilling their duty to interpret the Constitution and laws as they are written, judges increasingly seek to impose their own policy preferences on the nation. Disturbingly, some judges have begun to rely on foreign law to modify the requirements of the Constitution. The Supreme Court has overstepped its bounds in many areas, even asserting its authority to strike down national secu­rity measures that are clearly supposed to be left to the President as Commander in Chief. In order to restore the rule of law in America, elected officials, legal experts, and concerned citizens must oppose judicial activism and encourage the President to select constitutionalist judges.

Judicial activism occurs when judges write subjective policy preferences into the law rather than applying the law impartially according to its original meaning. Judicial activism can be either liberal or conservative; it is not a function of outcomes, but one of interpretation. While some argue that judicial activism is simply the striking down of any law or reaching a bad policy conclusion, it is not. A judge acting properly must strike down laws that violate the Constitution, and in applying the law dutifully, a judge could very well reach conclusions that might be perceived as bad policy but are nonetheless correctly decided according to the law’s original meaning.

A constitutionalist judge, by contrast, interprets the laws as they are written, regardless of whether he or she personally approves of the laws or would prefer a different outcome in the case. As Chief Justice John Roberts insightfully explained in his confirmation hearing, “Judges are like umpires. Umpires don’t make the rules; they apply them.” This is how the American Founders understood the judicial role.

By engaging in judicial activism, judges undermine both the rule of law and the ability of the people to decide important issues through their elected representatives. Put another way, judicial activism undermines the democratic process that is vital to our system of government. Instead of deferring to the role of the elected branches of government, judges take it upon themselves to directly influence policy areas that will inevitably lead the nation down a particular legal path.

Several egregious examples of judicial activism have occurred over the past decade at all levels of the judiciary. In Kelo v. City of New London, the Supreme Court interpreted the Takings Clause of the Consti­tution to allow government to seize citizens’ homes—not to build a road or fulfill some other public use as is required by the Fifth Amendment, but to transfer the property to a private corporation because it could pay more taxes. In the area of gun rights, the Second Circuit Court of Appeals ruled that the Second Amendment did not apply to the states through the Fourteenth Amendment and does not even implicate a fundamental right—a position that ignored a century’s worth of interpretation of constitutional rights. This decision was corrected by the Supreme Court, but only by a razor-thin 5–4 vote. There are many other questions concerning the right to keep and bear arms that are likely to come before the Supreme Court, and a switch of just one vote could change the outcome. Finally, in upholding the individual health care mandate of Obamacare, the Sixth Circuit Court of Appeals found that Congress, pursuant to its constitutional authority to regulate interstate commerce, could force Americans not engaged in commercial activity to purchase a product from a private company and to continue doing so from cradle to grave. If this interpretation were adopted by the Supreme Court, it would result in an unprecedented expansion of government authority and would fundamentally rewrite the Constitution and its limitations on federal power.

Other major cases involving state authority to enact immigration laws, examining whether states may constitutionally enforce equal protection of the laws by forbidding racial preferences, and assessing whether there is a constitutional right to homosexual marriage are all pending in federal courts. The outcome of these cases will depend on whether the judges deciding the cases adhere to what the Constitution requires or what their policy preferences prescribe.

Regrettably, President Barack Obama has said that he wants to appoint judges who will make decisions based on empathy rather than what the law as it is written requires. His appointment of activist Justices Sonia Sotomayor and Elena Kagan, as well as numerous appointments to the lower courts, demonstrates that he is largely succeeding.