If judicial activism is the means, the end is not justified

By Thomas L. Jipping
web posted June 19, 2000

The Supreme Court's decision supporting parental rights was wrong. Before you start questioning my conservative credentials or firing off angry e-mails, let me explain. Conservatives have long criticized judicial activism, the approach by many judges that treats the Constitution or statutes as if they were written in disappearing ink. Activist judges recognize the parts they like, ignore the ones they don't, and simply re-write the parts they think should be updated or changed. Activist judges are the masters, rather than the servants, of the law. By exercising this kind of power that they do not legitimately have, activist judges undermine the people's right to govern themselves.

Attacking judicial activism is easy for conservatives when judges are using it to achieve liberal results. Like when judges re-wrote the First Amendment to prohibit not a narrow establishment of religion but a much broader endorsement of religion. The First Amendment says "establishment" not "endorsement" and judges do not have the power to re-write the Constitution, to make it mean something it simply does not say.

Conservatives also went nuts when the Supreme Court invented the right to abortion. The 14th Amendment prohibits states from depriving people of liberty without due process. In the past, judges have gone beyond this procedural emphasis and filled in the substantive meaning of "liberty" as well. That's the gimmick they use for creating so-called "unenumerated" rights. This is just a slick way of saying that the Constitution includes more than what it says and that only judges have the power to fill in the gaps. That's where the right to abortion came from.

But then conservatives find themselves in a difficult position. Opposing judicial activism is easy when they don't like the results of that activism.

Granted, most activist judges invent liberal things. But what would happen if activist judges invented conservative things? Is the opposition to judicial activism really about judges having too much power, or about the way they exercise their power? Do they really oppose judicial despots when those despots become benevolent?

The case recently before the Supreme Court challenged conservatives on this.

An intrusive Washington state law allowed anyone to apply for visitation with children, even over the objection of parents. Parents filed suit and conservatives were excited that the issue of parental rights was on the agenda. Now the Supreme Court has struck down that law because, in the words of Justice Sandra Day O'Connor, it violated the parents' fundamental right "to make decisions concerning the care, custody, and control" of their children. And there's even Supreme Court precedent to back up this conclusion.

As good as this result may be, however, there is simply no such right in the Constitution. Judges used the very same approach to make up a substantive 14th Amendment parental right as they did to make up a 14th Amendment abortion right.

Justice Antonin Scalia dissented from the decision, writing that a parental right to direct the upbringing of their children is one of the "unalienable rights" mentioned in the Declaration of Independence. He said it is also one of the rights that the Ninth Amendment says the U.S. Constitution does not deny. But, he wrote, these observations are very different from saying that it is an actual federal constitutional right that judges can and must enforce. The issue should be addressed in the statehouse, not the courthouse.

Justice Scalia is right. Judges have no more power to make up something I like than to make up something I do not like. It's fine and noble to talk in sweeping, fundamental terms about excessive judicial power and the people governing themselves when the people are doing good things and judges are getting in the way. Benevolent despots, however, are still despots even when they are benevolent. Mussolini made the trains run on time, but he was still a dictator. Our freedom requires limiting the power of judges to make up the law, not just the power of judges to make up law we don't like.

Judge-made law is bad law by definition, whether the results are conservative or liberal.

Conservatives are wrong to decry only the judicial activism that produces results they don't like. It is impossible to defend judges running the country, and that compelling argument will be even stronger when conservatives who profess to believe it do so when it undermines their own political interests. Only by holding to principle over politics can we hope to re-balance the system created by America's founders and hope to preserve our freedom.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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