Excerpt: One of the best discussions of this issue I've ever seen appears in Townhall Magazine (August 2008), authored by Curt Levey, executive director of the Committee for Justice, which promotes the rule of law and judicial nominees dedicated to protecting it. His article is entitled "Holding the Line: Scalia-style strict constructionists are standing in the way of a 'living Constitution.'"
Mr. Levey cites three recent classic examples of ruling by judicial activist courts:
1. The June 2008 U.S. Supreme Court decision (Boumediene v. Bush) that "discovered" a constitutional right to federal court access for Guantanamo's enemy combatants.
2. At the same time, the Supreme Court discovered a constitutional prohibition of executing child rapists.
3. One month earlier, the California Supreme Court "discovered" a right to gay marriage in the state's constitution.
The destructive effects of judicial activism is most obvious now, but Stuart Taylor, a Supreme Court observer, says it has been with us and has been growing since the 1950s.
Lawyers understand this trend, but so does the public and it doesn't like it. Mr. Levey cites a Rasmussen opinion poll that found 60 percent of Americans think Supreme Court justices have their own political agenda but only 23 percent believe the court describes cases impartially. In 2005 an American Bar Association survey found by a two-to-one margin that Americans agree that judicial activism "seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality."
Mr. Levey offers a useful definition of judicial activism: Judicial activism "is marked by the elevation of a judge's policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the commonsense meaning or original intent of the constitutional or statutory text at issue."
One of the foremost proponents of judicial activism is Sen. Obama who favors judicial decisions based on the "feelings" of judges rather than on objective interpretation of the law. Here is Sen. Obama's description of the proper judicial philosophy: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what 'it's like to be poor, or African-American, or gay, or disabled or old. And that's the criteria by which I'm going to be selecting judges."
The trouble with the "empathy" test is that it is a license for the judge to rule anyway he feels like ruling. Mr. Levey poses these questions for a judge who is taking the empathy" approach to jurisprudence: "Does understanding what's it's like to be African-American instruct a judge to rule in favor of racial preferences? Or does empathy for the poor imply that the judge should rule for the poor, white job applicant who lost a job to the affluent beneficiary of minority preferences?"
The empathy standard as formulated by Sen. Obama is ridiculous on its face. Shouldn't a judge have empathy for all, not just the classes designated by Sen. Obama? Shouldn't a judge have empathy for everyone, not just Sen. Obama's designated classes? Where does it end? And what does it mean? It is a test that can't be applied and doesn't make sense.
And Sen. Obama's other yearning for judges who will "bring in his or her own perspectives, his ethics, his or her moral bearings." What does tha mean and how would it be applied? Would it mean that every judge would come up with a different decision based on their perspectives, ethics, and moral bearings? The Obama tests make no sense, but would certainly provide a license to reach any decision based on the whims and whimsies of every judge. The Obama test means we would no longer be under a rule of law, but a rule individual perspectives, ethics, and moral bearings. Anything would go under that kind of legal system.
Judicial activism takes many forms. Mr. Levey writes it can be used to construe black as white, to twist doctrines beyond recognition, and to invent new rights. It may ignore old rights, and play policymaker. Here's an example of inventing new rights from the Ninth Circuit, the nation's most liberal federal court. That court decided it was unconstitutional for NASA to require its contract employees to be subjected to background investigations. The Ninth Circuit decided those background checks were unconstitutional as they collided with the "constitutional right to informational privacy," a right created and discovered by the Ninth Circuit, but unfortunately not found in the Constitution.
When you start pulling rights and decisions out of nowhere, you endanger the rule of law, the political process and every American, according to Levey. He gives many examples of why the judicial activist is so dangerous.
Judicial activism is a fancy formula for unrestrained power in the courts. If judges are not bound by the U.S. Constitution and the laws of the land, they have unrestrained power. We no longer have a constitution and laws, but have only what judges out of their own empathy or perspectives think the law ought to be.
Judicial activism is totally undemocratic. It takes power away from the people and their legislatures, and gives power of judges to ignore the results of our political processes. When liberals and progressives can't get their ideas adopted in the legislature, they turn to the courts to legislate those ideas from the bench.
Judicial activism is elitist. It imposes elitists' values on the American people contrary to the values of the American people. When the Tennessee Supreme Court vacated a death sentence, the court ruled, "the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment." In other words, what rules is not what the people of Tennessee think about the death penalty and enact through their legislature, but what some elitists judges think they ought to think. That one sentence is one of the great summaries of where judicial activism and its elitist judges take us.
Mr. Levey catalogs all kinds of victims of judicial activism. For example, thousands of college athletes lost their scholarships and their dreams because the First Circuit ruled that there must be gender quotas for varsity athletes. That meant that females must have the same number of athletic scholarships as males. So many schools eliminated the teams rather than submit to the quotas. More than 50 male athletes have eliminated, on average, at each NCAA school.
This decision was made despite explicit statutory language that there should be no such quotas. But, as we've seen, the judicial activists can construe black as white, based on empathy, the judge's own moral values, or some other excuse to ignore the law and its clear intent. Judicial activism means the judge does anything he wants, and the Constitution and the laws be damned.
Read more in Free Republic.