Malo periculosam, libertatem quam quietam servitutem.



June 2009

Rethinking Judicial Activism

Written by , Posted in The Courts, Criminal Justice & Tort

Jeff Rowes has an excellent Op-ed in the WSJ explaining why “judicial activism” is not the real problem with the courts.

The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It’s called “judicial deference.” Many liberals, who take pride in being “empathetic,” would be surprised to learn that liberal judges also subscribe to judicial deference.

…The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.The absence of meaningful constitutional limits on the power of government over property and the economy has had consequences that should cause both liberals and conservatives to rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the Troubled Asset Relief Program, putting hundreds of billions of dollars at the personal discretion of the secretary of the Treasury. This grant of authority — which violates the basic constitutional duty of Congress to control the purse laid out in Article I, Section 8 — transformed the secretary into the most powerful unelected official in American history. Such power, once acquired, is rarely relinquished.

Many of the worst court decisions involve allowing other branches of government to get away with extra-constitutional behavior.   We need a judiciary that avoids activism when it entails adding new passages to the Constitution, but we need a judiciary that embraces it when other branches try to work outside the document’s authority.