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FIRST-PERSON: Independent judiciary? Yes; judges as lawmakers? No

LEESBURG, Va. (BP)–We hear a great deal these days about “judicial activism,” but what exactly does that mean?

Very simply, judicial activism occurs when judges make, rather than merely interpret, the law. Under our Constitution, “lawmaking” is the exclusive province of the legislative branch. Interpreting the law is the task of the judiciary. When judges exceed their authority and usurp the role of the legislature, “judicial activism” occurs.

Our constitutional republic was created with the intention that “lawmakers” would be directly accountable to the people. That accountability comes in the form of periodic elections. The electoral process ensures that political power in America is ultimately reposed in the people. Typically, the majority view prevails in the legislative arena, because if the public doesn’t agree with the laws that their representatives pass, they are free to replace them with someone else.

Unlike legislators, judges in the federal system are appointed, not elected. Judges, therefore, do not have the same form of accountability to the people that members of Congress have. And unlike our legislators who have limited terms, judges are appointed for life (subject to good behavior). This limited accountability was designed into our constitutional system because it was felt that judges would often be called upon to make unpopular decisions between litigants and that their judgments should not be swayed by popular sentiment.

After all, most would agree that disputes between litigants in an individual case should be decided on the “merits”, not some prevailing majoritarian view. By contrast, when legislators craft broad public policy that affects the whole of the people, most agree that majority sentiment should weigh heavily in the process.

When judges make law, the democratic process is short-circuited. Instead of garnering a majority of both houses of Congress (no small task), all that is required is a simple majority of the judges considering the case. Typically, that means only five votes are required to prevail in the U. S. Supreme Court and only two in the Courts of Appeals. And in none of the decisions rendered are any of the judges elected by the people.

Since far fewer votes are required to achieve a result in the judicial arena than in the legislative body, it is much easier through judicial activism to adopt a radical policy out of step with the sentiments of the majority. Consequently, what is at stake in the case of judicial activism is nothing less than the right of self-government through our elected representatives.

Congress should take bold and decisive steps to check and balance the excesses of judicial activists. While we all value the independence of the judiciary, judges were not intended to be above the requirements of the Constitution. Judges who make law undermine the foundations of our Republic and besmirch the good names and reputations of the vast majority of their colleagues who serve with distinction on the bench.
Ken Connor is a trial lawyer and chairman of the Center for a Just Society based in Washington D.C., online at www.centerforajustsociety.org

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  • Ken Connor