Counterpoint: Judicial Activism

Runaway Jurists

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Posted: 4/11/05

In Federalist 78, Alexander Hamilton characterized the courts as "the least dangerous to the political rights of the Constitution." His reasoning was that though the executive carried the power of the sword and legislative branch carried the power of the purse and made the laws, the judiciary only had the power to interpret the laws. Hamilton thus felt "the complete independence of the courts of justice is peculiarly essential in a limited Constitution." Hamilton feared that the executive and legislative branches would usurp the power of the judiciary to interpret the laws.

My how times have changed. Today it is neither the executive nor legislative branch that regularly impedes on the judicial territory; it is instead the courts that have all too regularly taken it upon themselves to formulate policy. In the last couple of decades, the courts have repeatedly inserted themselves in policy making, dressed up as Constitutional decisions.

Take, for example, Roe v. Wade. Without touching on whether or not the result that abortions are legal is a good or bad thing, the decision in Roe focuses more on the belief that legal and safe abortions are in the best interest of individuals and society as a whole (i.e. policy making) rather than focusing on how they are some how guaranteed in the text of the Constitution - it is a stretch, and again, regardless of what you think about abortion, a weak opinion.

On a more current note, look no further than the recent Supreme Court decision on juvenile executions in Roper v. Simmons. In Roper, Justice Kennedy primarily based his opinion on the premise that because twelve states have a blanket prohibition on the death penalty and eighteen others prohibit the execution of juveniles, the country must have reached a point where the execution of sixteen and seventeen year olds is per se unreasonable.

Kennedy further bolsters his policy (I mean legal, of course) analysis by noting that world opinion (read - primarily European) is also firmly against the execution of sixteen and seventeen year olds. I know I touched on this in a past column, but really, what difference does world opinion have on interpreting the United States Constitution? The only reason to cite EurOpinion is to defend a policy decision.

Last week, House Majority Leader Tom DeLay suggested that Congress should reassert its "Constitutional authority over the courts," because they have "run amok." Some suggested means of reeling in out-of-control judges include legislation restricting the jurisdiction of federal courts concerning certain issues to impeaching judges who consistently flaunt their obligations to rule on the existing law and instead create their own law.

Many have denounced any Congressional efforts in this area citing the importance of judicial independence. Senator Jim Jeffords (Ind.-VT) tried to analogize the situation to respecting the calls of a referee in a sporting event saying, "the first lesson we teach children when they enter competitive sports is to respect the referee, even if we think he might have made the wrong call ... if our children can understand this, why can't our political leaders?"

Where to begin on this absurd analogy? First, when a ref makes a completely idiotic call, we generally do not respect it or them. For example, in baseball if an umpire ruled that a deep fly ball to right that dropped in fair territory and then bounced over the back wall was a home run, that call should neither be respected nor allowed to stand, as the correct call id clearly a ground rule double. In fact, if that umpire consistently were to make such horrid calls, he would be fired. And that, is one of the unique factors in this debate - a judge who routinely chooses to chart his own course instead of following existing law cannot be fired either by his boss or by voters. He (or she, to be fair) can only be removed via impeachment.

On this front, Chief Justice Rehnquist said, "a judge's judicial acts may not serve as a basis for impeachment." Well, why not? If a federal judge makes it a regular practice to ignore Congressional intent in his holdings or to use those rulings as a cloak for making policy decisions, that judge has no business being on the bench - maybe he (or she) should run for an elected office.

Some argue that the specter of impeachment would send a chill throughout the judiciary thus influencing the way judges think and undermining the judicial independence that Hamilton and the Founding Fathers thought was so necessary to the strength of the republic. Well, it would send a chill throughout the judiciary - and rightly so. It would elevate the idea amongst judges that they are not the ultimate arbiters, but that they are constrained in their roles by the Constitution. As long as a judge did not make a habit of legislating from the bench or ignoring Congressional intent, they would not have to think twice or worry about impeachment.

By its very nature, impeachment proceedings are very difficult to see through to a successful conclusion. As such, only a judge who is a routine and flagrant abuser of his authority would need to worry, and if he is such a judge, he should worry.

At the time of the founding of this country, the Founders worried the judicial branch would become the redheaded stepchild of the federal government - routinely forced into subservience by the executive and legislative branches. As it turns out, the judiciary has risen to become arguably the most powerful of the three branches - lifetime tenure, can only be overruled by a higher court or an amendment to the constitution, and unaccountable to the populace. Though there are many good jurists who operate within the parameters of their offices, too many have wandered away from interpreting the law to making the law. To restore the balance between the branches, Congress must, as Mr. DeLay suggested, reassert it "Constitutional authority over the courts."