“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
Thomas Jefferson
As the quote above indicates, when the founding fathers of America created the Supreme Court, they intended it to have very little power compared to the other branches. It was merely to make judgments based on established laws, such as those passed by Congress and orders made by the President.
Most important of the established laws, however, is the Constitution. As found in Article VI, the Constitution reads,
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Judges were to be bound to the Constitution as the final authority, “the supreme law of the land.” This includes being careful to be sure of the original intent and meaning behind the Constitution, especially as definitions change over 200 years. However, this important responsibility of the Supreme Court has become warped in today’s politics, resulting in an action called judicial activism.
Judicial Activism
Judicial activism is when a court makes up a new right that doesn’t exist in the Constitution, and then strikes down a law based on that concocted “right.” It also happens when the Court ignores a provision of the Constitution that clearly applies to the case before it, and then imposes its public policy preference through the judicial decision.
In other words, judicial activism is when a judge attempts to change the Constitution either by creating a new “right” or by changing the original meaning of the Constitution. Judges are supposed to be limited to what the specific meaning of the Constitution is, along with the original intent of the founding fathers, not what their individual party, political agenda, or personal opinion is.
Unfortunately, countless times, the Supreme Court justices have ignored this vital responsibility. They have made decisions based on personal or party opinion, changed the original meaning of the Constitution, as well as ignored showing how the Constitution allows or doesn’t allow a law. This judicial activism by the Supreme Court is unconstitutional, and the exact opposite of what the founding fathers intended.
As Thomas Jefferson said,
“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”
This has been clearly seen in many court cases throughout the history of America.
Judicial Restraint
What the founding fathers intended was judicial restraint. Judicial restraint is the exact opposite of judicial activism. Judicial restraint is when a judge says, “Our job is to just be the umpire or referee. Not to make new rules.”
It’s when they recognize and make decisions based off of what the Constitution says and what the original meaning of it was. They follow the supreme law of the land and make sure laws and actions are consistent with the Constitution, not altering things to suit another purpose. This is what the founding fathers intended.
If we the people want to preserve our freedom, we must know the intended boundaries of our government. Looking back at the Constitution and our founders’ own writings, we can see how they intended for our government to be. It is only once we know this that we can make a stand for our freedom, and reel back the unconstitutional power that the Supreme Court has created for itself.
Taking away the ability of judicial activism from our judges and limiting them to judicial restraint will much better protect the unalienable rights outlined in the Constitution.
So how do you believe that this idea of judicial activism and judicial restraint apply to Roe v Wade?
Great and very relevant question! Roe v. Wade was a Supreme Court case that ruled that the Constitution protected the “right to abortion” in all 50 states.The problem is, there is nowhere in the Constitution protecting abortion, either explicitly or implicitly. The reasoning the Supreme Court used in 1973 was that because the Constitution protects the right to privacy, then the Constitution protects abortion. Of course, they had to cite the Constitution to make such a claim, and these are the two main passages that were used:
4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
As can be seen in these Amendments, there is nothing in there that implies a right to kill an unborn child. To reach the conclusion that the 1973 court did, they had to use a lot of imagination to reinterpret and warp the actual words and original meaning of the text. Roe v. Wade is thus a perfect example of judicial activism, because the justices arbitrarily created a new right in the Constitution, not limiting themselves to what the words of the Constitution actually say. In contrast, the case the overthrew Roe v. Wade, Dobbs v. Jackson, is an excellent example of judicial restraint, where the justices limited themselves to the actual words of the text and original meaning, acknowledging that there is nowhere in the Constitution that protects abortion.
I know that is a long answer, but it’s a very in-depth subject. Thanks for the question!
Is there a situation that you could imagine or that you point to where judicial activism would be necessary?
Hmm that is a hard question because when it comes to law, the word “necessary” can become very subjective. It is very dangerous to allow someone’s personal preferences to influence a court ruling. That is one of many issues in today’s political climate; many people have attacked the recent Supreme Court rulings simply because they didn’t like what the Court did, not on the basis that they were wrong. For example, AOC claimed that the Supreme Court striking down Biden’s student loan forgiveness and race-based college admissions is “a dangerous creep towards authoritarianism and centralization of power in the court.” She believes that those things are necessary but doesn’t care what the law actually says. Regarding student loan forgiveness, Congress never gave Biden the power to do that, making it unconstitutional. Even Pelosi admitted that. The same goes for conservatives. For example, I fully support states restricting irreversible transgender surgeries on children and believe that to be a form of child abuse. But I do not think that the Supreme Court has the power to create that law, even if I deem it “necessary.” All that to say, I cannot think of a situation where judicial activism would be necessary. There are certainly times when judicial activism can create good results, but such action would violate their constitutional role and gives the judiciary dangerous power. But I am curious to hear your thoughts. Do you think there are times when judicial activism is necessary?