There are times when the outcome of judicial activism has definitely been laudable. The instance that is always applauded as the triumph of judicial activism is Brown v. Board. In that case the Court opened the doors of then-white public schools to black students. Clearly and unequivocally a commendable decision that should be celebrated.
Cases like Brown are the exception, not the rule.
More often than not the end result of judicial activism is the subversion of the will of the people. In modern day, special interests groups and activists attempt to use judicial activism to impose their will--which often has already been rejected by the people--on the rest of society. The ACLU is the Extreme Left activist group that is most guilty of this abuse of our Constitution.
Short history lesson: the Founders wanted the Court to be the least powerful of the three branches. They gave it little power and expected it to be the tag-along-kid-brother of the branches. That all changed in Marbury v. Madison wherein the Court GAVE ITSELF the power to declare laws--laws passed by Congress and signed by the President--unconstitutional. Bottome line: the Founders never envisioned the Court having this power. As such, they put absolutely no check on this power.
If the Supreme Court declares something unconstitutional and you don't like it you have two options: 1. Amend the Constitution (good luck with that); 2. Suck it up. The process of amending the Constitution is so cumbersome that it is, for all practical purposes, not an actual option for checking the power of the Court. The end result: a judiciary with complete and total control over the direction of the government.
There are two types of judges. The first type revels in their power and is perfectly content to read politically charged decisions into the Constitution. They "read between the lines", establish a vague principle from specific words, then apply that vague principle to our specific circumstances however they wish. There is no "right to privacy" in the Constitution, but it is not the sacred cow of rights. How did this happen? The Supreme Court added a couple of amendments together, established there was a vague principle there, and extracted a new right. This right has thus became the building block for many of the most controversial political decisions made both in the legislature and in the courts.
The second type of justice is one who is not willing to replace the words of the Founders with other words that he/she finds more acceptable. They are not willing to read abortion, gay marriage, privacy, or any other of the host of controversial issues into the Constitution. If the Constitution doesn't address it, they will not say it does. These are the justices who practice "restraint".
We need fewer activist judges and more who practice restraint.
Last month the standard bearer for judicial restrain, Supreme Court justice Antonin Scalia, walked into the lions' den. He agreed to a debate with one of the leaders of the ACLU at their national convention. Ballsy. Here was the exchange that was particularly important:
Go get 'em Antonin. Those who practice restrain are the defenders of democracy and the Constitution.
- ACLU Rep: "There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be."
Interpretation: judges should/must subvert democracy to enforce those things they consider "fundamental" right, even if those things are not in the Constitution.
- Scalia: Determining "Whether [a controversial issue like abortion or homosexual rights] is good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution."
Interpretation: Judges must not read into the Constitution anything that's not there.
The meeting between the ACLU and Scalia, while being truly entertaining to only political nerds like me, nonetheless represents the battle for America. We need more restrain, and we need more Scalias.
Bush may not get to appoint another Justice, but if the Senate stays blue and the White House goes that way, too, this Battle for America will go the Left's way.
Long live Scalia (literally).
4 comments:
I understand that if the Founding Fathers never meant for the Court to have a significant amount power and therefore there is currently no check against it, then what powers was the court supposed to have?
Also, not having a degree in any kind related to government, correct me please. I thought I heard somewhere that Congress has the power to limit what cases the Supreme Court can hear, is that true?
Good questions.
As to the question "what powers was the court supposed to have", the answer is pretty straight forward, as they spelled it out in Article II, Section 2. To summarize: any conflict between states or people in different states; anything that happens at sea; anything that happens in territories not yet states (we have none at present); any conflict between a state and a foreign country; any case dealing with an ambassador or dignitary. Main point: anything outside the perview of a specific state.
As to your second question, the answer is much more muddled. Does Congress specifiy levels of judicial review appropriate or allowed in each case? Kind of. What they often write into bills is time-frames consistent with what could be considered "statutes of limitations". Here's an example of what I mean from a 2005 bill in Congress: "Not later than 90 days after the notice regarding the final economic analysis is published in the Federal Register under subsection (d)(2)(B), any small business concern or small governmental jurisdiction adversely affected ...may file a petition for judicial review." (S. 1519). So they limit the scope/timeframe of the review, but not whether it can be reviewed. In other countries, Britain for example, they have a provision that allows Parliament to strip the Court of judicial review over that law. If they do so, Parliament must renew that bill on a yearly (or bi-annually, I can't remember right now) basis. The U.S. has no such provision. If Congress tried to slip that into a bill, the Supreme Court would simply declare such a law unconstitutional. There is only one guaranteed way of subverting the process of judicial review: amend the Constituion.
Hope that is helpful (though wordy).
Quality points, K. Few would argue that Scalia is the smartest person on the Supreme Court, and that is because he always takes the strict road in his decisions, and doesn't play politics. How do we know this? Because on several cases he sided with the "liberal" wing of the court, because the issue was one of originalism.
20 years on the court for Scalia, let's hope for another 20.
Elgreggo,
Quite a good point about Scalia. Indeed, there have been cases in which he has sided with the liberal-wing, but as I went back and looked at his decisions, those instances have been few and far between. What I think is more likely as to why he is not thought of as the most intelligent on the Court is that, plainly, his interpretation of the Constitution is not popular. He does not try to insert his own "enlightened" opinion ahead of the decision of those participating in the democratic process. What is more, he openly makes fun of those who hold what the liberal, elite media deem the "right" interpretation. I sumbit to you this dissent, written by Scalia, for your reading pleasure. It was about the case where a guy named Casey sued the PGA Tour because the rules prohibited him from driving a cart, even though he was disabled, and therefore unable to walk:
"If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf–and if one assumes the correctness of all the other wrong turns the Court has made to get to this point–then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf."
Awesome.
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