Whose Justice?

Judicial activism, the practice of judges ignoring the law and deciding cases based on their personal political views, has been a problem in America since well before the Supreme Court invented a right to abortion in Roe v. Wade.  Many federal judges have become de facto legislators in recent decades, substituting their self-presumed wisdom for the will of Congress.  In the process, the American people have lost more and more power to influence the laws under which they must live.

Activist federal judges often view the Constitution as an anachronism that stands in the way of their visions for “social justice.”  They usually view European socialism very positively, and unconditionally believe in the United Nations and international law.  Accordingly, activist judges increasingly are looking outside the US for guidance when deciding cases.

This latest brand of judicial activism has a name: “transjudicialism.”  Transjudicialism means that American federal judges consider foreign and international legal sources when deciding cases, even though such sources often conflict directly with our own Constitution. 

As Robert Bork explains, six of the nine Supreme Court justices have either written or joined opinions that favorably cited foreign authorities.  These justices have considered the European Court of Human Rights, various United Nations conventions, international human rights treaties, and even judicial decisions from India, Jamaica, and Zimbabwe when writing their opinions!  Simply put, these justices are making the incredible argument that American federal courts should consider sources other than US law when deciding cases.  In the words of one justice, the Court “cannot afford to ignore the rest of the world.” 

It’s not hard to see the grave danger posed by this new trend.  Anti-gun judges could cite restrictions on gun ownership in other countries approvingly when disregarding our Second amendment.  Hate speech laws in other nations could be used as authority to weaken the First amendment.  Our wholly domestic tax, labor, environmental, and family laws could be influenced by United Nations edicts, foreign court judgments, and international treaties which have not been ratified by the United States.

The US Constitution is the supreme law of the land in America.  Congress needs to exercise its constitutional power over federal courts and send judges a strong message that Americans will be governed by American law only.  I recently introduced legislation that forbids the Supreme Court and lower federal courts from citing any foreign or international laws, rules, policies, or court decisions as authority for their opinions. Federal judges take an oath of office promising to decide cases in accordance with the Constitution and US federal law.  Those judges who insist on considering foreign law and foreign opinions should be removed from their positions for violating that oath, pure and simple.  Justice Scalia warns that “Day by day, case by case, the Court is busy designing a Constitution for a country I do not recognize.”  Congress needs to act quickly before Mr. Scalia’s fears are fully realized.