Sowell On The Politics Of Activist Judges

Thomas Sowell :

Those who want to see judges who will apply the law instead of imposing their own policies face not only political obstruction to the appointment of such judges but also calculated confusion about the very words used in discussing what is at issue.

Judges who impose their own preferences, instead of following the law as it is written, have long been known as "judicial activists" while those who carry out the law, instead of rewriting it to suit themselves, have been said to be following the "original intent" of the law.

But now a massive effort to muddy the waters has been launched by those who want judges who will continue to impose the liberal agenda from the bench. Words like "activists" and "intent" are being twisted beyond recognition.

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One of the major functions of the Supreme Court for more than two centuries has been to strike down acts of Congress, the President, or the lower courts when any of these exceed the authority granted to them by the Constitution. Calling this "judicial activism" is playing games with words and befogging the real issues.

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It is one thing to allow the government to take land needed to build a military base or a dam and something very different to allow the government to bulldoze people's homes to turn the land over to a private developer to build casinos or shopping malls.

I agree with Sowell. And, I think the debate around "judicial activism" has greater import than discussion of "legislating from the bench" suggests. I think the term "judicial activism" certainly includes "legislating from the bench," but the term covers more. When the Supreme Court allows government to "bulldoze people's homes to turn the land over to a private developer" it has done more than "legislate from the bench." The Court has amended the words of the Constitution from "for public use" to "for public purpose." The Legislature cannot, on its own, amend the Constitution. So, sometimes the term "activist judges" describes more than legislating from the bench. Perhaps we should say in such cases that "activist judges" are "amending from the bench" or even "ratifying from the bench."