The most important and lasting civil rights-related changes in the U.S. have come through either direct votes of the people, or through their representatives in state legislatures or the U.S. Congress. Examples include the Civil War-era constitutional amendments and Civil Rights Act of 1871, women’s sufferage (19th amendment), Voting Rights Act of 1965, etc.
What offends me as an American and a voter is when unelected judges short-circuit democracy by legislating from the bench. When judges legislate from the bench we are as likely to get a Dred Scott-like decision as we are a Brown v. Board of Education one. Anything that has to go through the scrutiny of a public vote or legislative action is more likely to stand the test of time.
I trust the people and our elected representatives far more than I trust our Supreme Court to make good law and public policy. It is for this reason that I fear for my country and Constitution if…
For me, legislating from the bench occurs where justices move beyond interpretation of the law by putting their finger into the air of public opinion to test which way the winds of popular culture are blowing. One of the worst recent examples of this was the US Supreme Court‘s Kelo v. City of New London decision involving the use of eminent domain to transfer land from one private owner to another for economic development purposes.
On the US Supreme Court, the main finger-wavers seem to be Justices Souter, Kennedy, and Ginsberg. Unfortunately, our latest Supreme Court nominee, Judge Sonia Sotomayor, strongly favors the policy-making Justice model.
The judge-as-policy-maker model has had serious adverse consequences for the country whenever it has been employed. Here are just a couple of examples:
- The Kelo decision (mentioned above) went far beyond interpretation of law into setting public policy better left to state legislatures. The resulting public outcry led to a rash of state constitutional amendments and new laws that effectively repudiated the Kelo decision. Rather than ease redevelopment in older cities (a public policy choice and the obvious intent of the court majority), Kelo had the effect of actually making it far more difficult and expensive for older communities to redevelop problem areas.
- The success of Proposition 8 shows that the California Supreme Court overreached back in May and was slapped down by the voters – just as President Jackson once slapped down Chief Justice Marshall (not Jackson’s best moment, but a good example of the effective limits of judicial authority).
- In the wake of the disastrous Dred Scott decision (see link above), it took two decades and the patient work of a new generation of justices to rebuild the U.S. Supreme Court’s moral authority.
These consequences ought to be warning for those members of the current Court and new nominees who may consider themselves to be some kind of super-legislature to humble themselves a bit and stick to interpreting the law and Constitution as written.