What Can We Do About Judicial Activism?
Shall we appoint judges who stick to the Constitution and the Framers' original intent when interpreting and applying statutes? Or shall we appoint judges who rewrite the Constitution according to their own views?
Articles within this series
- Overview
- What Can We Do About Judicial Activism?
- Filibuster Flip-Flops
- Next Steps / Related Information
Q. Is this problem of judicial activism involved in the current Senate conflict over the president's judicial nominees?
A. That is precisely the issue. The conflict is over what type of judge to appoint to the federal bench. Shall we appoint judges who stick to the Constitution and the Framers' original intent when interpreting and applying statutes? Or shall we appoint judges who rewrite the Constitution according to their own views, which often are contrary to the clear intent of the Framers, or to legislatures that make the laws, or to hundreds of years of common law on issues like abortion, same-sex marriage, and public-square expressions of our faith heritage?
Q. Why do Supreme Court appointments seem to create the most heated debates?
Supreme Court activism creates a ruling oligarchy where the elite few govern the many by judicial fiat.
A. The Supreme Court is the final word in our federal court system and therefore the final word on whether a statute or other legislative or governmental action (either state or federal) conflicts with our Constitution. For better or worse, its decisions impact every American's daily life. Supreme Court activism creates a ruling oligarchy where the elite few govern the many by judicial fiat (an arbitrary order or decree).
Q. How can we ensure that activist judges are not appointed to federal and state courts?
A. Federal judicial appointments are for life. To ensure that constitutional originalists (judges who apply the Constitution based on the original meaning given to it by the Framers) are appointed to the bench, we should demand accountability from our president, who nominates judicial candidates, and from our senators, who are charged with voting for or against the judges the president nominates. We can vote for senators who will approve only judges who will adhere to the Constitution's original intent. We can make certain those judges live up to their responsibilities by demanding impeachment of judges who act unconstitutionally through their activism.
Depending on the state, some state judges are appointed, some are elected, and some are appointed for a term and then run for "retention," which gives them another term. Voter education on the philosophy of judicial candidates is the key. Find out how judges are appointed or elected in your state, and demand information and accountability.
Since the 2002 Supreme Court decision in Republican Party of Minnesota v. White,1 states holding elections for judges are required to respect judicial candidates' First Amendment rights to speak to voters concerning their views on all sorts of issues. Many state public-interest organizations are now publishing voter guides for state judicial candidates who respond to questionnaires. If you can't locate one of those voter guides,2 ask the candidate directly, and refuse to vote for any candidate who refuses to answer questions.