Bench Memos

Law & the Courts

How Much Power Are Unelected Judges Supposed to Have?

Chief Justice John Roberts (seated, center) leads Justice Ruth Bader Ginsburg (front row, left to right), Justice Anthony Kennedy, Justice Clarence Thomas, Justice Stephen Breyer, Justice Elena Kagan (back row, left to right), Justice Samuel Alito, Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch in taking a new family photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)

Picture the U.S. Senate in session, debating one of the president’s nominations.

One senator wants to know whose side the nominee would be on in disputes between corporate and consumer interests, between polluters and protecting the environment, or between insurance companies and average Americans. The “real issue,” he had declared earlier, is: “Will he be on the side of workers or is he going to be on the side of the bosses?”

Another senator chimes in, saying that her support would depend on whether the nominee would “stand with us and with our families or be on the side of major special interests.”

This may sound like a debate over the nominee to head, say, the National Labor Relations Board or perhaps the Consumer Financial Protection Bureau. But these comments actually arose during the debate over the 2005 nomination of John Roberts to be Chief Justice of the Supreme Court. And they expose one side in the debate over how much power judges should have.

The Left views the judicial branch as no different from the executive or legislative branches. To them, judges are supposed to “take sides,” making sure that some political interests win and others lose.

It’s a very dangerous view — one that runs counter to the way America’s Founders designed our system of government. They separated the three branches so that government power would be limited; the Left today tries to blur those boundaries so that government will be more powerful.

America’s Founders said that the judicial branch would be the “weakest” branch because judges exercise “judgment” but not “will.” Today’s Left is trying to make the judiciary the strongest branch by promoting willful judges determined to make the law they apply.

This is what the debate over the Kavanaugh nomination is all about. How much power are unelected judges supposed to have in our system of government?

The notion that the Constitution means whatever five members of the Supreme Court want it to mean is as radical as it is indefensible. It’s simply a judicial application of “might makes right,” turning our system of government on its head and making impossible the liberty that it was designed to secure.

When he became a judge on the U.S. Court of Appeals in 2006, Kavanaugh took the oath required by federal law, promising to “administer justice without respect to persons, and to do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.”

That’s one view of judicial power: Judges should be fair, impartial, and the faithful to the Constitution as written. The other view was expressed by Senate minority leader Charles Schumer (D., N.Y.) hours after President Donald Trump announced Kavanaugh’s nomination to the Supreme Court. Schumer said that Kavanaugh would have to provide “affirmative commitments” about how he will handle certain issues and cases that will come before the Supreme Court.

There you have the two sides in this debate over how much power judges should have. The judicial oath requires that they be impartial; Senate Democrats demand that they be partial. The oath requires judges to treat the poor and the rich equally; Senate Democrats demand that judges favor what they often call the “little guy.” The oath requires that judges administer justice “without respect to persons”; Senate Democrats demand that judges administer different justice to different persons.

Senators, no less than Justices, swear to uphold the Constitution. Let us hope they honor that vow as they consider the Kavanaugh nomination.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

Most Popular

Elections

The Debate Dumpster Fire

On the menu today: You know what we’re talking about today -- that Godforsaken festival of incoherent crosstalk that was allegedly a presidential debate. It Figures That a Dumpster Fire of a Year Like This Would Bring Us a ‘Debate’ Like This Last night, I thought the first presidential debate of the ... Read More
Elections

The Debate Dumpster Fire

On the menu today: You know what we’re talking about today -- that Godforsaken festival of incoherent crosstalk that was allegedly a presidential debate. It Figures That a Dumpster Fire of a Year Like This Would Bring Us a ‘Debate’ Like This Last night, I thought the first presidential debate of the ... Read More
Elections

Everybody Loses, Which Helps Biden

Reactions to tonight's debate will likely be deeply polarized, as everything else is. There are a few things that are clear. One, this was probably the worst presidential debate in American history. There was a ton of cross-talk and shouting down, there were many bald-faced lies and obvious evasions, a former ... Read More
Elections

Everybody Loses, Which Helps Biden

Reactions to tonight's debate will likely be deeply polarized, as everything else is. There are a few things that are clear. One, this was probably the worst presidential debate in American history. There was a ton of cross-talk and shouting down, there were many bald-faced lies and obvious evasions, a former ... Read More

Ben Sasse: Everybody Loves Amy

After Justice Anthony Kennedy announced his retirement in 2018, Ben Sasse had three words on his mind: Amy Coney Barrett. They’d been on his mind for a while. The Nebraska senator had first started hearing about Barrett from faculty at Notre Dame Law School, where Barrett was a professor, shortly after Trump ... Read More

Ben Sasse: Everybody Loves Amy

After Justice Anthony Kennedy announced his retirement in 2018, Ben Sasse had three words on his mind: Amy Coney Barrett. They’d been on his mind for a while. The Nebraska senator had first started hearing about Barrett from faculty at Notre Dame Law School, where Barrett was a professor, shortly after Trump ... Read More
Elections

Trump Did Himself No Favors

The debate was a remarkable example of the fact that Donald Trump, the most self-serving man in America, doesn’t know how to do himself any favors. For the first ten or twelve minutes of the debate, he was walking away with it — Trumpy, sure, but in control and surprisingly reasonable-sounding. If he had ... Read More
Elections

Trump Did Himself No Favors

The debate was a remarkable example of the fact that Donald Trump, the most self-serving man in America, doesn’t know how to do himself any favors. For the first ten or twelve minutes of the debate, he was walking away with it — Trumpy, sure, but in control and surprisingly reasonable-sounding. If he had ... Read More

Chaos in Cleveland

The 90 minutes of “debate” between President Donald Trump and former vice president Joe Biden cannot be told as a cohesive story, or reduced to a few bottom lines. It was too fast and too disorganized. Almost anyone watching would have just picked up impressions along the way. I’ve grouped mine into piles ... Read More

Chaos in Cleveland

The 90 minutes of “debate” between President Donald Trump and former vice president Joe Biden cannot be told as a cohesive story, or reduced to a few bottom lines. It was too fast and too disorganized. Almost anyone watching would have just picked up impressions along the way. I’ve grouped mine into piles ... Read More