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

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