Law & the Courts

Ten Thoughts on Judicial Activism

Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill in Washington, D.C., July 10, 2018. (Leah Millis/Reuters)
What to bear in mind as the Kavanaugh-confirmation fight heats up

With the nomination of Brett Kavanaugh to the Supreme Court, you’re probably going to be hearing a lot of dumb things from your left-leaning friends about judicial activism, the power of precedent, and constitutional rights. A few things you’ll want to keep in mind.

  1. Overturning a law as unconstitutional isn’t “judicial activism.” Failing to adhere to a Supreme Court precedent isn’t judicial activism either. If the law is in fact unconstitutional — meaning in conflict with the actual text of the Constitution — then throwing it out is not judicial activism: It is the Court’s duty. Likewise, if a precedent has no basis in the Constitution, then overturning it is not judicial activism: It is the Court doing its job.
  2. The Court gets it wrong from time to time. Often in the past, the Court has got it wrong in decisions that offend our moral sensibility. In other instances, the Court has got it wrong when reaching an outcome we might support — an outcome that is, in fact, good. There are a fair number of legal scholars, conservative and liberal, who believe that Brown v. Board of Education was a poor decision (or at least a poor opinion) as a matter of constitutional law, irrespective of the fact that desegregating American schools was a moral necessity. It is not the case that every moral good is mandated by the Constitution or that every moral ill is prohibited by it.
  3. Likewise, there are many legal scholars — including pro-choice ones — who believe that Roe v. Wade was a bad decision, an embarrassing act of pure judicial activism in which the justices of the Supreme Court, led by Harry Blackmun, substituted their own moral preferences for the actual letter of the law. Until fairly recently, it was common for liberal lawyers and judges to acknowledge the defects of Roe — even Ruth Bader Ginsburg has criticized the decision. Don’t expect to hear very much of that intellectual honesty now, of course: Cowardice and conformism are the rule of the day.
  4. Most critics of Roe hold that the Constitution is in fact silent on the question of abortion. Roe is based on an inferred right to privacy that appears nowhere in the actual text of the Constitution, a right that is, as currently construed, almost infinitely plastic. The same vague right to privacy that supports Roe could just as easily be used to nullify gun laws or business regulations. Even if you support abortion rights, you should consider the possibility that Roe has no real basis in the Constitution.
  5. On the other hand, several of the recent Supreme Court decisions hated by the Left — especially Citizens United and Heller — are based on protections that are actually specified in the Bill of Rights. The First Amendment really does protect political speech, which is what Citizens United was about. The Second Amendment really does enshrine the right to keep and bear arms, which is what Heller was about. Maybe you think the Constitution should be amended to allow for stricter regulation of political speech or to restrict firearms ownership. That’s fine — and there is a process for amending the Constitution. But, for the moment, the Constitution says what it says.
  6. Which brings us to the question of what judicial activism actually is. Properly understood, the question of whether there should be a legal right to abortion is separate from the question of whether there actually is a legal right to abortion in the text of the Constitution. It is fanciful to believe that there was in fact a constitutional right to abortion lurking in the document for nearly 200 years, unnoticed by the men who wrote and ratified it, and then discovered by Justice Blackmun et al. Judicial activism is what happens when judges abuse the power entrusted to them, choosing to act as politicians making policy rather than as judges upholding the law even when they wish the law were other than what it is.
  7. If the Constitution is silent on abortion, then abortion becomes — as it should be — a political question to be settled through democratic processes. States will debate and propose laws restricting abortion rights or protecting them, and Congress may consider legislation of its own. The people’s elected representatives will vote on the question. There will be compromises and, one hopes, an eventual consensus. That is how social questions of this sort are supposed to be sorted out, rather than through the fiat of nine black-robed academics empowered to impose their own will on the republic at large.
  8. The definition of “unconstitutional” isn’t “I don’t like this, and I wish it were different.” The definition of “constitutional” isn’t “I like this and want to keep things this way,” either.
  9. We write our laws down for a reason. The alternative to being constrained by the actual language of the law is being ruled by the caprices of judges and politicians.
  10. Putting your fingers in your ears and stomping your feet does not change what the Constitution actually says.


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