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.
- Elected officials should seek to promote robust dialogue regarding the importance of approving constitutionalist judges. They should seek to educate the American people concerning the threat of judicial activism and pledge to promote the appointment or election of constitutionalist judges.
- Public officials should help to ensure that those who are selected to be judges will faithfully interpret the Constitution and laws as written. This means that the judge will follow and apply the text’s public meaning at the time of its enactment, regardless of whether the judge personally approves of the outcome or would prefer a different outcome. At the federal level, the President should nominate and Senators should confirm only such faithful constitutionalists. At the state level, officials with appointing authority should do the same. In states with an elected judiciary, public officials should encourage citizens to evaluate every judicial candidate’s approach to judging, including the candidate’s record of fidelity to the Constitution and laws as written.
- Senators should vigorously question a judicial nominee regarding his or her philosophy of judging. Senators have the duty to gauge whether a nominee will be faithful to the original meaning of the Constitution and laws. Senators should ask the nominee what role, if any, empathy will play in his or her decision-making. Will the nominee interpret the Constitution according to its original meaning or according to his or her personal view of “evolving standards?” Additionally, they should question a nominee’s position on the role that foreign law should play in interpreting the U.S. Constitution and laws.
- Senators should carefully examine their role in the “advice and consent” process. The President has the constitutional duty to nominate judges to the federal courts, but Senators have a constitutional duty to advise him and give their consent to the appointment of these judges. In addition to considering a nominee’s experience, intelligence, and integrity, Senators should seriously consider whether a nominee demonstrates that he or she will apply the laws as they are written. In casting their votes, Senators must keep in mind their own oath to protect and defend the Constitution.
Facts & Figures
- In a national survey of 800 actual voters conducted by the polling company™ inc./WomanTrend for the Federalist Society, 70 percent of voters surveyed preferred Supreme Court justices and other federal judges “who will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.”
- When asked what qualities Senators should consider most in the advice and consent process, 41 percent of those surveyed answered that the most important consideration should be whether a nominee has a record of “interpreting the law as it is written in past rulings.” According to the survey, this is even more important to voters than the nominee’s “past experience as a judge.”
- Justice Ruth Bader Ginsburg will be 83 and Justices Antonin Scalia and Anthony Kennedy will be 80 by Election Day 2016. Should either Scalia or Kennedy retire and be replaced with a liberal activist justice, that would significantly alter the current balance on the Supreme Court.
- The Supreme Court currently hangs in a delicate balance. Only four of the nine current justices have demonstrated that they are usually faithful and consistent constitutionalists. The others are either liberal activists or inconsistent in their approach.
- Some of the most significant decisions over the past few years have also been decided by 5–4 votes. These include D.C. v. Heller, the case confirming an individual right to bear arms; Kennedy v. Louisiana, the notoriously activist case declaring that states’ imposition of the death penalty on child rapists violates the Constitution’s ban on cruel and unusual punishment; and Boumediene v. Bush, which declared the right of habeas corpus for Guantanamo Bay detainees—one of several of the Court’s usurpations of national security authority.
- Unable to justify their desired outcomes with United States law, several justices have resorted to citing foreign law in interpreting our Constitution and laws. At least three of the current justices have publicly promoted this practice.
- Because the Supreme Court hears so few cases a year, the circuit courts are often the last resort for citizens challenging an injury. It is therefore vitally important that constitutionalist judges are nominated and confirmed for the circuit courts as well.
Selected Additional Resources
- David F. Forte, “Appealing to the Judge’s Better Angels,” Heritage Foundation Lecture No. 1111, June 17, 2009.
- The Heritage Foundation, “Order in the Court” Web Site.
- “Key Findings from a National Survey of 800 Actual Voters,” the polling company™ inc./WomanTrend for the Federalist Society, November 5, 2008.
- John McGinnis, “Advice and Consent: What the Constitution Says,” Heritage Foundation WebMemo No. 800, July 19, 2005.
- Edwin Meese III, “Would the Founders Recognize the Supreme Court Today?” remarks to the John M. Ashbrook Center for Public Affairs at Ashland University and the Federalist Society, October 6, 2008.
- Jeremy Rabkin, “How Does Elena Kagan See America’s Place in the World? Why the Senate Needs to Ask Some Hard Questions,” Heritage Foundation Legal Memorandum No. 55, June 23, 2010.
- “The Presidency and the Courts,” Conference Sponsored by the Cincinnati Chapter of the Federalist Society and the Ashbrook Center for Public Affairs at Ashland University, October 6, 2008.
Heritage Experts on Role of the Courts