Sometimes, judges decide to become legislators. They take it upon themselves to fix “problems” they believe the legislature has ignored or things they think the legislature has done wrong. This practice, often called “legislating from the bench” or “judicial activism,” conflicts with the basic principles of our government.
Judges are supposed to base their actions on legitimate sources of their authority, such as the state constitution or language in a law. They should not use their position to implement their own political, social or moral ideas.
Judges who substitute their opinion for that of elected representatives are dangerous to our system of government. One person’s opinion should never replace the will of a majority. Such activism breaks down public confidence because decisions are based on individual whims instead of a body of law. Our freedoms, economic security and our very future are at risk when judges fail to function in their constitutional role.
Judicial activism undermines the Constitution
Our nation’s democracy is built on a principle of separation of powers, governed by a system of checks and balances. Judicial activism is a direct challenge to that system. In effect, a judge or panel of judges takes power from the legislature or governor by declaring that judicial power is superior. That’s not good for our democracy; in fact it’s the exact opposite of what the framers of the U.S. Constitution intended. A small group of justices – in some states, as few as four justices on the state’s highest court are needed for a majority – were never supposed to have such unchecked authority.
Making laws is the job of legislators who are elected by and accountable to their constituents. The judiciary’s job is to interpret those laws and apply them fairly. Our freedom depends on a judiciary that is committed to its role in our three-part system of government, not one that wants to take over the jobs of the other two. Judges are supposed to say what the law means, not what the law is.
Not all judges who strike down statutes are activist judges. Sometimes the legislature makes mistakes and exceeds its power. Under those circumstances, the court finds authority in the state constitution to fix the legislative mistake. This is what a judge is supposed to do—check the power of the legislature.
Judicial activism erodes confidence in the courts
When judges are activists, the idea of the impartial court is lost and legal uncertainty takes over. Indeed, the question is no longer “what does the law say,” but “what does Judge So-and-So say?” Judicial activism threatens judicial independence. If the basis for judicial decisions lies outside the state constitution and the language of the law, it opens the door for special interests to align with activist judges to push a social or political agenda.
Judicial activism threatens our economy
When a business evaluates whether a state is “business friendly,” one of the important things it considers is the state’s litigation environment, and whether the law is fairly and consistently applied. A state with a history of judicial activism creates uncertainty and sends a warning against doing business there. This can have enormous economic consequences for employees.
Judicial activism can affect our lives for generations
Court decisions not only have a direct effect on every aspect of our lives; the consequences of their decisions are far reaching. Bad law enacted by a state Supreme Court is almost always the final word. Court rulings should be based on the state’s constitution and laws, not on the social, moral or philosophical whims of a given judge or group of judges.
It’s been said that judges should be like umpires. Imagine what baseball would be like if umpires were allowed to interpret the rules based on what they thought the rules should be. (“He threw you out at first, but you ran so hard trying to get there, I’m going to call you safe.”) The game would be ruined. Of course, in the end, baseball would still be a game. Far more is at stake if judges substitute their interests for the laws that govern us.
