A metaphor regarding judicial activism


I was thinking about judicial activism this morning, and I thought of something that might help elucidate my opposition to such a situation. Again, it is not the place of the judiciary to legislate ex cathedra, [1] if for no other reason than that to do so is an unwarranted (read: unconstitutional) expansion of judicial authority beyond the bounds set for them by the letter of the law. Allowing the judiciary to exceed their bounds subverts the rule of law by tacitly agreeing that the limits on their authority as set down in the law do not apply. This is like saying that a speeding driver, who actively breaks the law by speeding, is safe because he has not killed or injured anybody (or himself). While this may be true on an individual basis, the same is not always true when applied in the abstract; this is a logical fallacy, as it takes an exceptional case and applies it to the general case. The most that one can say is that such a driver has been lucky thus far, but this may not always hold true. It is also true that the more often this driver engages in dangerous behavior, the more likely it is that he will meet with unfortunate consequences.

The same may be said of judicial activism as it pertains to the Republic. Insofar as the Republic has not been irreparably injured by judicial activism, we can consider ourselves to have been supremely fortunate thus far. It is fallacious, however, to presume that simply because the Republic has survived activist tendencies in the judiciary before, it will survive such tendencies in the future. While the work of the judiciary is inextricably tied to the laws of the land, it must be remembered that judges interpret the law on an individual basis – they see the body politic in its individual components, and only when said individuals appear before them. Judges do not see the body politic as a whole, whereas our representatives in the legislature are specifically tasked with seeing our societal needs in this way. By the same token, the legislature does not, and should not, create laws for limited, individual cases; it only sees the law in the abstract, and it would be equally fallacious to presume that the legislature could craft reasonable laws that account for the specific demands of 300 million individuals. At best, the legislature must see the body politic not as 300 million distinct individuals, each with different sets of demands, but as an abstract body that has certain shared fundamental requirements. Sotomayor is correct in that it is the role of judges to “humanize” the law by interpreting how the law should be applied in the individual cases that they see. While it is true that judicial rulings are often used as precedents for future rulings, this sort of generalization is nowhere near as far-reaching as the abstract generalizations inherent in legislative acts – nor should it be.

We tempt fate every time we allow the judiciary to decide that they, as singular individuals, know better than the legislature itself how to craft law for general application. Conversely, the same is true if we allow the legislature to determine how the law should be interpreted in any individual case. The Framers wisely believed that no one branch of the government should have supreme authority over the laws governing the Republic. We would do well to abide by their wisdom, rather than discarding what they created because it does not work the way that certain individuals (or factions) want it to work. Remember that the Republic does not exist to specifically address your individual concerns or mine, or those of various factions; it exists to promote the general welfare [2] – for all our people. Methinks that many of the unwarranted expansions of Federal authority, not to mention the myriads of entitlement programs specifically tailored to the needs of various factions, would not exist had we not forgotten (or actively ignored) this principle. Alas.


[1]: In case you’re not familiar with the term, this is a Latin phrase that is used to refer to Papal infallibility in the Catholic Church. When the Pope speaks ex cathedra, it refers to the practice of pronouncing official dogma “from the chair,” i.e., from the seat of authority for the Church hierarchy. The irony, of course, is that the Pope is supposed to set the official rules, while judges are tasked with interpreting the rules created by the legislature (otherwise known as Congress).

[2]: Or have you forgotten the opening statement of the Constitution? In case you’ve forgotten: “We the People of United States, in order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common Defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Note the tone of the language: domestic Tranquility; common Defense; general Welfare; We the People of the United States.


2 Responses to “A metaphor regarding judicial activism”

  1. MI Says:

    I share your concerns re. judicial overreaching; however, I don’t find the terms “judicial activism” & “strict construction” to be terribly useful (mostly ‘cuz of imprecision). See here for details:


  2. […] I Dislike “Judicial Activism” Recent deployments of the phrase “judicial activism” on J’s Blog – regarding the Sotomayor nomination – reminded me of how much […]

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