Judicial Activism

What, exactly, is “judicial activism”? Judicial activism occurs when a judge (or a court) takes the law that applies in a particular case -- such as a statute or a Constitution -- and changes it to produce a result which appeals to the worldview of the particular judge. This can be done by creating a constitutional right that does not exist, or by ignoring one that already does exists.

To understand judicial activism, we should also understand its counterpart, judicial restraint. Judicial restraint does not mean being overly respectful of every standing statute; what about those which are clearly unconstitutional? Striking down statutes which conflict with the Constitution and supporting those which align with the Constitution are hallmarks of judicial restraint. Conversely, when judges ignore the Constitution in order to uphold ill-conceived and unconstitutional statutes because those statutes support their personal opinion on public policy matters, they should and must be considered a judicial activist.

Another way to spot judicial activists is to examine their decision-making process, usually dispensed via briefs on why they ruled or voted a particular way. When judges cite foreign courts, multinational treaties and international law as mitigating (or overarching) factors in their decisions, they are clearly judicial activists. When judges cite “useful decisions” by the Privy Council of Jamaica, the Supreme Court of Zimbabwe and the Supreme Court of India, as U.S. Supreme Court Associate Justice Stephen Breyer did in a 1999 case involving allowable delays of execution, it becomes clear that they are judicial activists.

The single most important influence on American law should be the U.S. Constitution. However, many on the left, particularly (and predictably) those in academia, see nothing wrong with using foreign law to “inform their judgment” or “broaden the context” of an issue before a United States Court. They see nothing wrong with citing legal precedents of foreign courts or even applying them to American jurisprudence. This tendency to internationalize issues that come before them is useful because it suits their worldview, it supports their agenda, and it allows them to rationalize their personal preferences for how they wish things to be. The fact that many of these things are contra-constitutional is a minor obstacle to overcome; they are the judges, are they not?

To make matters worse, judicial activists aren’t shy about taking on legislatures to get what they want. Perhaps W. James Antle III, writing in Intellectual Conservative.com, says: “The powers vested in the judiciary may require courts to issue unpopular decisions or even to rule that laws commanding majority support are unconstitutional. But this does not empower judges to summarily overturn laws they disagree with on policy grounds and replace them with something closer to their own views; to do so would be to overstep the legitimate powers of the judiciary and usurp those properly belonging to the legislature.”

The problem is, “legislating from the bench” has become more prevalent and more intrusive than you might think. In Montoy v. State of Kansas, a case that went before the Kansas Supreme Court in 2005, the court held that the state legislature was violating the Kansas Constitution by failing to provide suitable funding for Kansas public schools. The Kansas Constitution provides that the legislature "shall provide for intellectual, educational, vocational, and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such matter as may be provided by law." Section 6b grants the legislature the power to make “suitable provisions” for finance of education. The Court did not invoke a long-standing legal doctrine but rather re-cast the word "suitable" as a legal term for the Court to interpret rather than the legislature. In determining what suitable means, the court usurped the legislature's power by making a fundamentally legislative determination as to how to allocate the state's budget. In effect, the court has taken away the people of Kansas’ ability to control spending through their elected representatives.

In Kelo v. New London, the Supreme Court of the United States (SCOTUS) ruled 5 to 4 that state and local governments could use eminent domain to take private property against the owners' will for use in private development. Eminent Domain is most commonly used when the acquisition of real property is necessary for the completion of a public project, such as a road, and the owner of the required property is unwilling to negotiate a price for its sale. In this case the public project was not a road, but a series of development projects attached to the relocation of Pfizer to New London.

The question before the court, then, was how to balance New London development against the protection provided by the Fifth Amendment, which states that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

So, how did the “due process of law” play out in Kelo v. New London?

Writing for the majority, Justice John Paul Stevens stated: "The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including -- but by no means limited to -- new jobs and increased tax revenue." On the dissenting side, Justice Sandra Day O'Connor wrote: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

In other words, it’s the “little guy” who gets squashed by the judicial activism of liberal judges. (In case you’ve missed it thus far, the larger point of this blog is to highlight the irony –- and the hypocrisy –- of the “little guy” getting creamed by liberal politics and the policies they engender.)

Finally, no discussion of judicial activism would be complete without taking a look at the Ninth Circuit Court of Appeals. Stretching from Guam to Arizona, the Ninth Circuit Court is the largest federal circuit in the nation. It is also the circuit most overturned by the Supreme Court.

This is the court that ruled the Pledge of Allegiance was unconstitutional, assisted suicide was constitutional, and the Second Amendment’s right to bear arms applied only to states, not individuals. They also declared that cross-dressers constitute a persecuted class of people and are therefore eligible for asylum in the United States, allowed that some religious groups have the right to smoke marijuana on federal lands, and prohibited authorities from searching gas tanks at the U.S.-Mexico border. In 2000, the court said a job applicant can not be rejected because his health problems would be worsened by working at the place he is applying.

Most recently, the Ninth has determined that an “injunction would be appropriate” to force the United States Navy to limit its use of sonar. This is a result of lawsuits brought by environmental groups on behalf of whales, who, they feel, are at risk from the high-frequency sound waves emitted by sonar. Sonar allows the Navy to safely navigate underwater and track enemy submarines. The Navy says it already minimizes the exposure of marine line to sonar and that it has seen no evidence of sonar-induced injuries to whales.
Who else would we expect, but the Ninth Circuit Court, to interject themselves into the United State’s military chain of command?

Don’t think judicial appointments are important? Fourteen of the 28 Ninth Circuit Court judges were appointed by President Clinton, and these include his Oxford roommate and a classmate from Yale. Meanwhile, the Bush administration has 11 circuit court nominees awaiting Senate confirmation, three of whom were nominated 18 months ago.

In November, 2007, President Bush said: "Today I announced seven more outstanding judicial nominees for the district and circuit courts. And I look forward to working with the United States Senate to confirm these good men and women as soon as possible. Unfortunately, the Senate has failed to act on many of my other nominees. ... This leads to what are called 'judicial emergencies' - vacancies that cause justice to be degraded or delayed."

Could it be that the Democrat-controlled 110th Congress were stalling the confirmation process? Well, each year the Federal appellate courts decide more than 30,000 cases, meaning that for most criminal appeals, for most civil appeals, and on most constitutional issues, the decisions of these courts will be the law of the land. If you were a leftist, would you want a conservative POTUS installing judges? Ah, but let us acknowledge the difference between what we want and what is right.

We cannot allow the checks and balances so carefully constructed by the Founding Fathers to be ignored or cast aside. There are important reasons for having a separation of powers within our government, not the least of which is to avoid a gathering tyranny from any one branch.

Thomas Jefferson wrote, in 1821, that "The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated.”

That sentiment is echoed today. In Coercing Virtue: The Worldwide View of Judges, Robert Bork writes: “What judges have wrought is a coup d’etat – slow moving and genteel, but a coup d’etat nonetheless.”

Fortunately, some among us appreciate the importance of restraint.

"Judges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law,” said Chief Justice John Roberts. “When the other branches of government exceed their constitutionally mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities.”

These are words well worth remembering.

REFERENCES & ADDITIONAL READING

“What Exactly Is Judicial Activism?” by Thomas L. Jipping, CNS Commentary from the Free Congress Foundation, March 7th, 2001
“Judge Bork: Judicial Activism is Going Global,” by Kelley Beaucar Vlahos, Fox News, September 11th, 2003
“Judicial Lawmaking and its Threat to Freedom,” the Girard Press, November 8th, 2006
W. James Antle III
http://www.wikipedia.com/
http://www.pbs.org/
http://www.foxnews.com/
“Judges Hold No Rank In Military Chain of Command,” by Phyllis Schlafly, Feb 18th, 2008