Politics and Judicial Activism

August 15,  2005  

The nomination of Judge John Roberts to sit on the Supreme Court has reopened a bitter cultural divide in America, and the Senate confirmation hearings in September may exhibit more of the partisan rancor that characterized the Robert Bork and Clarence Thomas hearings. 

It’s sad that so many Americans see their freedoms as dependent on a single Supreme Court justice.  Federal judges were never meant to wield the tremendous power that they do in modern America.  Our Founders would find it inconceivable that a handful of unelected, unaccountable federal judges can decide social policy for the entire nation. 

Dozens of political pressure groups stood ready to launch an immediate public relations attack on any judge nominated by President Bush, while dozens of others stood ready to support the nominee no matter what.  These groups reflect the unfortunate reality that millions of Americans unquestioningly support or oppose judicial nominees based solely on the party affiliation of the current president.  Once again, blind loyalty to political parties has politicized a process that our Founders never intended to be political.  When we as voters and citizens allow the nomination of judges to become political, we have only ourselves to blame for the politicization of our courts themselves.  When courts become politicized, judges not surprisingly begin to act like politicians.

Judicial activism, after all, is the practice of judges ignoring the law and deciding cases based on their personal political views.  With the federal judiciary focused more on legislating social policy than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.

Congress is guilty of enabling judicial activism. Just as Congress ceded far too much legislative authority to presidents throughout the 20^th century, it similarly has allowed federal judges to operate wildly beyond their constitutional role.  In fact, many current members of Congress apparently accept the false notion that federal court judgments are superior to congressional statutes.  Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.

The congressional power to strip federal courts of jurisdiction is plainly granted in Article III, and no constitutional amendments are required. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters.  Giving more authority over social matters to any branch of the federal government is a mistake, because a centralized government is unlikely to reflect local sentiment for long.  Both political parties are guilty of ignoring the 9^th and 10^th amendments, and federalizing whole areas of law that constitutionally should be left up to states.  This abandonment of federalism and states’ rights paved the way for an activist federal judiciary. 

The public also plays a role in the erosion of our judiciary.  Since many citizens lack basic knowledge of our Constitution and federalist system, they are easily manipulated by media and academic elites who tell them that judges are the absolute and final arbiters of US law.  But the Supreme Court is not supreme over the other branches of government; it is supreme only over lower federal courts.  If Americans wish to be free of judicial tyranny, they must at least develop basic knowledge of the judicial role in our republican government.  The present state of affairs is a direct result of our collective ignorance.