Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

Recent Supreme Court confirmation processes have revolved around the concept of judicial activism. President George W. Bush made it perfectly clear that he would nominate judges who would “exercise not the will of men, but the judgment of law.”6 When nominating Judge John G. Roberts to be Chief Justice of the United States Supreme Court, President Bush vowed that Roberts would “strictly apply the Constitution and laws, not legislate from the bench.”7 At his Senate confirmation hearing on September 12th 2005, then-Judge Roberts told the Senators, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”8

President Bush later stated, when nominating my Princeton classmate, Judge Samuel A. Alito, that then-Judge Alito “understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”9 Senator Jeff Sessions, a Republican from Alabama, who interviewed Roberts prior to voting to confirm him, criticized “[a]ctivist rulings not based on statutes or the Constitution.”10 Senator Tom Coburn, a Republican from Oklahoma, echoed Sessions’s complaint, stating that “[d]ecades of judicial activism have created . . . huge rifts in the social fabric of our country.”11

During the debate over the nomination of Supreme Court Justice Sonia Sotomayor, conservative senators and commentators were troubled with comments Judge Sotomayor repeatedly made in speeches outside of the courtroom. Senator Sessions voted against Sotomayor’s confirmation, fearing that she lacks “the deep-rooted convictions necessary to resist the siren of judicial activism.”12 Senator John McCain, a Republican from Arizona, also opposed Sotomayor’s confirmation, stating that while he had “great respect” for her, she had a “long record of judicial activism.”13

The senators’ reservations about confirming Sotomayor are mainly derived from a lecture she gave at the University of California-Berkeley, in 2001. Her lecture was entitled “A Latina Judge’s Voice.” In the speech, Sotomayor focused on her heritage and her gender, and concluded that her background and personal experiences influence her judging. Toward the end of the speech, Sotomayor stated that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”14 Sotomayor reiterated this sentiment in later speeches. Furthermore, at a conference at Duke University in 2005, Sotomayor stated that “the court of appeals [the court on which she was sitting at the time] is where policy is made.”15 Taking these out-of-court statements at face value, it may appear that Sotomayor feels that her personal experiences and biases will directly influence her decisions, that she seeks to develop policy from the bench, and that she harbors legal views based on nationality or race.

Yet, Judge Sotomayor’s decisions as a federal district court judge, and as a judge on the Second Circuit Court of Appeals, indicate that she is far from an activist. I do not agree with all of her decisions, but it is clear that she is highly intelligent, has a tremendous respect for the law and precedent, and exercises judicial authority well within the present-day parameters of American legal thinking. She will likely be an intellectual asset to the Supreme Court.

It is dangerous for judges actively to make policy, and there are structural constraints in place to prevent them from doing so. The judicial power of the United States is outlined in Article III of the United States Constitution, which states, “The judicial Power shall extend to . . . Cases . . . arising under this Constitution and the Laws of the United States . . . [and] to Controversies between two or more States. . . .” (emphases added). Section 2 goes on to define the types of cases that federal court judges can hear. This Section limits a federal judge’s power by requiring that a federal court must be presented with a case or controversy over which it has jurisdiction in order to act. Furthermore, when a case reaches an appellate court, the legal issue at hand becomes so specific and fine-tuned that there is very little room for a judge drastically to affect the law.

Nevertheless, judges at the Court of Appeals level, and justices of the Supreme Court, are not judicial umpires who merely “officiate” disputes between parties. They are not moderators whose sole purpose is to keep order while the parties resolve their disagreements. They are legal scholars often faced with serious decisions about uncertain areas of the law.

The Supreme Court’s behavior in defining the law does not make its members “judicial activists.” In fact, the Framers wanted the Supreme Court to perform this function. They envisioned the federal judiciary as a branch of government independent of the legislative and executive branches, and one that would preserve the Constitution.

In The Federalist, No. 78, Alexander Hamilton* wrote that given our “limited constitution” (one that identifies certain specified exceptions to legislative authority), the courts must be independent in order to check legislative action.16 According to Hamilton:

Limitations [on legislative authority] can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.17

James Madison agreed with Hamilton, stating that the job of the judiciary is to act as an “impenetrable bulwark” to protect our constitutional liberties against the political branches of government.18 There is no serious dispute that the Framers envisioned judges engaging in what I’d like to call “constitutional activism,” whereby judges interpret the Constitution, preserve its legitimacy, uphold the Natural Law, and restrain the power of all governments to take away our individual liberties.

The Birth of “Judicial Activism”:

Marbury v. Madison

Chief Justice John Marshall’s opinion in Marbury v. Madison19 mimicked the Framers’