Judicial Activism Undermines Rule Of Law

Supreme Court nominations shouldn’t matter this much.

But they do, because Supreme Court justices disagree on fundamental questions, such as: Should justices be originalists and interpret the law, including the Constitution, as written? Or should they be judicial activists and substitute policy preferences for the law?

From some press coverage, one might understandably believe this question arose a few decades ago. But it did not.

And judicial activism has ugly origins. In 1857, the Supreme Court in Dred Scott v. Sandford created a right to own slaves where no such right existed. In 1896, the Supreme Court in Plessy v. Ferguson upheld “separate but equal” racially segregated public facilities. In 1941, the Supreme Court in Korematsu v. United States upheld internment camps for Japanese Americans.

Yet judicial activism isn’t something to avoid only when the result is bad. By picking the result it wants to reach and then deciphering reasons to get there, a court teaches that the ends justify the means, fosters manipulation, erodes respect for the law, undercuts the public’s faith in government, engenders cynicism, and undermines — over the long term — nothing less than the rule of law itself and thereby government’s ability to protect ordered liberty, including the inherited rights we cherish.

That’s why the debate between originalists and judicial activists, at base, isn’t about policy preferences. It’s about the rule of law.

The hard truth for the country — and particularly for Americans, especially Republicans, supporting originalism — is that the Supreme Court should have had a majority of originalists after the Reagan and Bush 41 administrations. But some appointees of these administrations weren’t the originalists they might have been.

Nor were some appointees of the Eisenhower, Nixon, and Ford administrations what they might have been.

Which means the Supreme Court’s judicial activism in recent decades is substantially Republicans’ fault. Yes, Republicans’ fault.

Because the Bush 43 and Trump administrations have done significantly better, the Supreme Court may be on its way to having a majority of originalists.

Are originalist justices perfect? Of course not. But that’s not the question. The question is: Do we want originalists? That’s an easy question, because the rule of law is worth defending.

Nevertheless, we shouldn’t have to defend the rule of law every time there’s a Supreme Court vacancy. Supreme Court nominations shouldn’t matter this much.

Because they do, we can expect political hardball over Supreme Court vacancies. When political hardball starts, truth is often and tragically the first casualty. The second tragic casualty is often the reputations of many whom judicial activists savage for daring to oppose them and defend the rule of law.

West Ellicott resident Randy Elf, a former law clerk to two federal judges who has defended First Amendment rights to political speech in federal courts from Maine to Hawaii, explored seeking the Republican and Conservative parties’ nominations for New York attorney general in 2018.