Thirty-six years ago, abortion-on-demand was legalized by a judge, not for constitutional reasons, but for political ones. There’s really no point in going into much detail on the case since you’re aware of its consequences, but in light of Sonia Sotomayor’s recent confirmation to the U.S. Supreme Court, I find it appropriate to discuss judicial activism. This term has been around for decades, gaining prominence following the Supreme Court’s Roe v. Wade decision in 1973.
To put it plainly, judges who practice judicial activism are ones who infuse their political beliefs into the process. These judicial activists ‘legislate from the bench,’ meaning, they craft public policy in the courts. To them, it’s not simply a matter of following precedent or adhering to a strict, impartial interpretation of the law. Judicial activists typically label the Constitution as a living, breathing document, one that is open to broad interpretation. This particular philosophy leaves room for judges to let their personal opinions get in the way, which is not what judges are supposed to do.
In contrast, in an interview with C-SPAN on August 5, 2006, Chief Justice John Roberts explained the proper role of the judicial branch of government: “…I have a particular sensitivity to the role of the court in interpreting the Constitution and the laws, and a particular concern to preserve the independence of the judiciary apart from the political branches because that’s what the framers recognized as key to the judiciary performing its function” (http://www.c-span.org/special/roberts.asp).
Belief that the judiciary is supposed to be separate from politics is a value that our Founders shared—mainly to keep our government’s separation of powers intact and to preserve the Constitution’s ultimate authority. This is why, from the birth of the Constitution until the end of the 19th century, the notion was that interpretation was “based on the ‘fair reading’ of the document and a moderate form of judicial review.” Basically, when a question of constitutionality arose, the goal was to “limit the range of disagreement and provide generally accepted criteria for resolving such questions” (http://www.heritage.org/research/legalissues/fp2.cfm).
For more on this complicated topic, follow the link in the paragraph above. The Heritage Foundation has a comprehensive review of the history of judicial activism. But what needs to ultimately be understood is that a consensus existed back then on how to interpret the Constitution, but does not exist anymore. Since the 19th century, more activist forms of constitutional interpretation have emerged, giving way to some very damaging court decisions. Roe v. Wade is of course the most popular reference, but there are plenty more examples.
As Founder and President of Eagle Forum, Phyllis Schlafly, explains: “Some of our most far-reaching social, economic and political decisions have been made by judges rather than by our elected representatives. These include decisions about criminal procedures, prayer and the Ten Commandments in public schools, internal security, pornography, forced busing, racial preferences and quotas, term limits, abortion, and election procedures” (http://www.eagleforum.org/psr/2002/oct02/psroct02.shtml).
The truth is, judges are creating laws, and the Constitution is clear that judges do not have such authority. Article 1, Section 1, states that all legislative powers are vested in the Congress. There are no exceptions to this rule.
As we move forward, let’s do so with the understanding that there should only be one way to interpret the Constitution: the way our Founders intended. This does not mean that there is never room for improvement in our supreme law (abolishing slavery was a welcome change), but the point of having law in the first place is to keep order. It is not wise for modern judges to write their own personal social opinions into law. Challenging the Constitution’s authority should be done in a prudent manner, and it’s unfortunate that another life-appointment (Sonia Sotomayor) to the Supreme Court was just made—one who seems to lack the prudence the court so desperately needs.