It's Time to Restore Our Judicial Branch
If you ask most Americans if they want judges who are presently serving on state or federal courts to act like politicians, you’d likely get a resounding “No.” Take, for example, a 2016 Marist poll in which 52 percent of Americans say they want the Court to interpret the Constitution “as it was originally written.”
Sadly, many judges in America act like policymakers instead of working as impartial arbiters of our nation’s laws. The result is an unnecessary politicization of the judicial branch. This trend needs to stop.
Too many Americans from all points along the political spectrum view the judicial branch as a mini legislature to bypass lawmakers in the states and on Capitol Hill. Too many judges have accepted or advanced this expansion of authority. Consequently, we now see unelected judges deciding which laws to enforce or worse, issuing their own edicts from the bench. Nothing could be further from the way our Founders wanted the judicial branch to operate.
That federal judges are appointed for life should make it easier for them to resist arbitrary rulings influenced by the fleeting political whims of the electorate. Their role is to declare what the law is, not what they think it should be. Likewise, when assessing the constitutionality of a law, judges should let the Constitution guide them. Their proper role is to evaluate in light of what the Constitution says, not what the desired policy should be or the political popularity of matter in question.
For example, the U.S. Supreme Court in a rhetorically and logically contorted opinion National Federation of Independent Business v. Sebelius -- retooled and saved the unconstitutional Affordable Care Act. Ironically, the author of that opinion also delivered a stern dissent in Obergefell v. Hodges, “It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples,” says Chief Justice John Roberts:
“It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes under the law.”
It should be no surprise that, as the judicial branch wanders into this policymaking realm, the politics of judicial appointments and confirmations has become more partisan. Recent news reports on the rate at which Democrat senators vote against the president’s judicial nominees reveal that, as the presidential campaign heats up, bipartisan confirmation votes go down. In fact, data provided by the Heritage Foundation shows that opposition to judicial nominees under the current president has skyrocketed to unprecedented levels. This escalation, with very few exceptions, is along partisan lines.
But elected officials playing politics with unelected officials is nothing new. One of the earliest and most important decisions by the Supreme Court, Marbury v. Madison, which asserted -- among other things -- the Court’s authority to declare legislation or executive action as unconstitutional, began as a dispute over judicial appointments.
Beginning with the nomination and eventual rejection of Robert Bork in 1987, however, nominees have seen their personal beliefs as well as their judicial philosophy twisted into rhetorical clubs with which to beat them into defeat. The campaign that led to Bork’s defeat broke new and dangerous ground -- so much so that Bork’s name is now used as a verb in political circles.
The fiasco surrounding Brett Kavanaugh’s confirmation was a clear demonstration that the influence of the judicial branch has far exceeded the Founders’ intent -- for both parties, the stakes were too high.
William F. Buckley, Jr. famously described political conservatives as those “who stand athwart history yelling ‘Stop!’” When it comes to preserving ordered liberty, constitutionalists are those who stand athwart politics yelling “Read!”
Our Founders explained the purpose of dividing power among three separate and co-equal branches of government. With each branch zealously guarding its own influence an overreach by one would be met by resistance from the other two.
Over time, the legislative and executive branches have ceded too much ground to the judicial.
This can and should be remedied by appointing and confirming judges who leave policymaking to those accountable to the people via the electoral process.
Lathan Watts is director of legal communications for First Liberty Institute, the nation’s largest nonprofit law firm and think tank exclusively dedicated to defending religious liberty, and a regional fellow of National Review Institute. Learn more at firstliberty.org.