As the battle over John Roberts’ Supreme Court confirmation begins, the one widely agreed upon measure of qualification is that he not be a “judicial activist.” While conservatives have long railed against “activist” judges “making” law by legislating from the bench, many on the left in recent years have similarly criticized the Rehnquist court as “activist” (on behalf of executive powers, for instance). Charges of “activism” have essentially become a smear intended to discredit any decision with which one disagrees. More damaging, however, the use of this label, on all sides, fosters a serious confusion about the role of the judiciary.
The charge of “judicial activism” typically condemns proper activity on the part of judges along with improper activity. It has become dangerously commonplace to equate a judge’s support for overturning a law with pernicious activism. Prevailing wisdom holds that we can identify “activists” simply by counting up the number of times a judge rules against existing laws or government practices. Notice that by that logic, the only way for a judge to avoid overstepping his authority is to engage in no activity–to simply rubberstamp whatever the legislature and other agencies of government serve up. What, by this reasoning, is the point of having a Supreme Court? Some laws should be struck down. Because the United States is a constitutional republic, we are all bound–private citizens and government alike–to abide by the Constitution. It is precisely the role of the judiciary to strike down laws and prohibit government actions that fail to do so. Judges who so rule are acting responsibly and fulfilling their function.
Laws are necessarily written in broad terms, designed to govern an array of cases that are similar in principle but different in particulars. Judicial rulings are needed when the proper application of those laws, in a specific case, is not transparent. The logical application of a Constitutional provision to novel circumstances is not, therefore, a case of creating new rules ex nihilo. Rather, it is exactly what we need judges to often do. While Article I, for instance, provides for the common defense and the specific maintenance of an army and navy, courts have not been activist dictators by also allowing an air force. While the First Amendment protects freedom of “speech” and of “the press,” courts have not brazenly “legislated” by treating written letters as also protected.
In doing their job, judges must be mindful of the 9th Amendment. The Constitution does not provide an exhaustive catalog of every right that citizens possess. The 9th Amendment explicitly instructs us that those rights not named in the Constitution are retained by the people. It is thereby laying down a principle to guide Constitutional interpretation. Accordingly, judges must apply the law in a way that respects all the rights of the citizens, unenumerated as well as enumerated. It is no more legitimate to subtract from the Constitution, by ignoring this provision, than to arbitrarily add to it.
The salient question in assessing any nominee, then, is not whether a judge takes action, but the factors that guide his actions. To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts: First, that individual rights are broad principles defining the individual’s freedom of action. The familiar rights of life, liberty, property and the pursuit of happiness subsume a vast array of particular exercises of this freedom, some explicitly named in the constitution (e.g., the freedom of speech) and some not (the right to travel). Second, he must understand that the government’s sole function is to protect individuals’ freedom of action. As Jefferson explained, it is “to secure these rights, [that] governments are instituted among men.” Third, he must recognize that our government properly acts exclusively by permission. Articles I, II and III specify the powers of the three branches of government and the 10th Amendment expressly decrees that powers not delegated to the federal government are reserved by the states or by the people. The government, in other words, may do only what it is legally authorized to do.
These, correspondingly, are the considerations that should guide a judge’s decision-making. It is precisely because action from judges is often needed that principled action–action premised on the basic principles of our republic–is essential. Only a nominee whose record demonstrates that he is so guided is fit to be entrusted a place on the Court.
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