The Imperial Judiciary

October  4, 2004

Last week’s debate over the constitutional marriage amendment brought even greater attention to the issue of activist judges.  From gay marriage to Boy Scouts to frivolous lawsuits to the Pledge of Allegiance, Americans have grown increasingly distrustful and suspicious of our federal courts- and rightfully so.  Never in our history have unaccountable federal judges wielded more power over our lives.

Judicial activism, the practice of judges ignoring the law and deciding cases based on their personal political views, has intensified in the decades since Roe v. Wade.  This practice is now standard for many federal judges.  They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case.  For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold.  With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.

But what is to be done?  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.

The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts.  This power 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.  Remember, when social issues are federalized, conservatives always lose.  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.  If anything, the marriage amendment would have given the secular left an excuse to impose gay marriage on all of us in future years, as the issue would have been irrefutably federalized.

Congressional cowardice enables 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 political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove.  As a society we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure.  It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not.  It’s also time for Congress to start establishing clear limits on federal judicial power.