When the founders of our country wrote the Constitution, they considered the judiciary the "least dangerous branch" of the federal government because it had neither the "sword" of the executive branch nor the "purse" of the legislative branch. In viewing the federal judiciary today, however, it might be more appropriate to remember Lord Acton's observation that "power corrupts; absolute power corrupts absolutely."
Nowhere has this been more clearly demonstrated than in the recent situation in California, where federal district court judge Thelton Henderson thwarted the clear majority of that state's voters who passed Proposition 209, which eliminates racial and sex discrimination in hiring, promotion, and contracting by the state government and in admissions to state-run colleges and universities. On April 8, 1997, the U.S. Court of Appeals for the Ninth Circuit corrected this injustice and reversed the trial judge, stating in clear language how wrong he had been. But the arrogance of Henderson's original decision illustrates how easily federal judges can abuse their power.
The Perils of a Powerful Court
Under the modern doctrine of judicial review, the federal judiciary can invalidate any state or federal law or policy it considers inconsistent with the U.S. Constitution. This doctrine gives unelected federal judges awesome power. Whenever these judges exceed their constitutional prerogative to interpret law and instead read their personal views and prejudices into the Constitution--a practice that has become known as judicial activism--the least democratic branch of the government becomes the most powerful as well.
America's Founding Fathers created a democratic republic in which elected representatives were to decide the important issues of the day. In their view, the role of the judiciary, although crucial, was to interpret and clarify the law--not to make the law. The framers recognized the necessity of judicial restraint and the dangers of judicial activism. James Madison wrote in The Federalist Papers that to combine judicial power with executive and legislative authority was "the very definition of tyranny," and Thomas Jefferson believed that allowing only the unelected judiciary to interpret the Constitution would lead to judicial supremacy. "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions," said Jefferson. "It is one which would place us under the despotism of an oligarchy."
Unfortunately, the federal judiciary has strayed far beyond its proper functions, in many ways validating Jefferson's warnings about judicial power. In no other democracy in the world do unelected judges decide as many vital political issues as they do in America. We will never return the federal government to its proper role in our society until we return the federal judiciary to its proper role in our government.
Who Reviews the Judiciary?
Supreme Court decisions based on the Constitution cannot be reversed or altered except by a constitutional amendment. Such decisions are virtually immune from presidential vetoes or congressional legislation. Abraham Lincoln warned of this in his first Inaugural Address when he said that
The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.
When the most important social and moral issues are removed from the democratic process, citizens lose the political experience and moral education that come from resolving difficult issues and reaching a social consensus. President Reagan explained how judicial activism is incompatible with popular government:
The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not--as it is not--will we have liberal courts or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people?
Taking on Runaway Judges
When federal judges exceed their proper interpretive role, the result is not only infidelity to the Constitution but very often poor public policy. Activist court decisions have undermined numerous aspects of public policy, allowing racial preferences and quotas, creating new "rights" for fraudulent recipients of public welfare assistance, hampering criminal prosecutions by imposing on state courts rigid procedures not required by the U.S. Constitution, lowering hiring standards for the American workforce, and "discovering" a right to abortions. In these cases, and many more, federal courts at all levels have removed the most profound social and moral issues from the democratic process without any constitutional authority.
As a result of activist judicial decisions such as those cited above, many scholars have recently called into question the legitimacy of the federal court system. When judges substitute their own view of what the law should be, instead of interpreting what is actually contained in the Constitution and statutes, we are well on our way to having a government of men, rather than a government of laws.
A constitutional and appropriate answer to "runaway" judges is for Congress, as a separate and coequal branch of government, to exercise the authority given to it by the Constitution. Specifically Congress can do the following:
The Senate should use its confirmation authority to block the appointment of activist judges. This confirmation process in recent years has been relatively perfunctory. The Senate Judiciary Committee should closely question each nominee for the federal bench to ascertain the candidate's understanding of the proper role of the judiciary. Likewise the full Senate should have a roll call vote on each prospective judge, so that each senator takes personal responsibility for the quality of those confirmed.
Congress should strip the American Bar Association (ABA) of its special role in the judicial selection process. The chairman of the Senate Judiciary Committee has stated that the ABA has forfeited its right to quasi-official status because of the organization's politicized position on a number of controversial issues having nothing to do with the legal profession.
Congress should exercise its power to limit the jurisdiction of the courts. The Constitution provides that Congress is authorized to establish those federal courts subordinate to the Supreme Court and set forth their jurisdiction. Congress also has the power to limit the jurisdiction of the Supreme Court and regulate its activities. Accordingly, Congress should exercise this authority to restrain an activist judiciary.
Congress should stop the federalization of crime and the expansion of litigation in federal courts. Too often it is Congress that enlarges the power and authority of the federal courts and provides more opportunities for judicial activism by enacting new federal criminal statutes or creating new federal causes of action. By restraining its own law-making powers, Congress can also help to rein in the federal courts.
Judicial activism has harmed virtually every aspect of public policy in America. Leftist politicians have accomplished much of their agenda in the past thirty years not through the use of such democratic means as the electoral process or legislation but through the use of the federal courts. The American people will never be able to regain democratic self government--and thus shape public policy--until we curb activist judges. Congress can and should be an ally in this means of returning our country to constitutional government and the rule of law.