February 12, 1998

In his book, The Tempting of America, Robert Bork diagnosed a growing problem with liberal judges. He accurately determined an increasing willingness on the part of liberal judges to substitute their political ideology and partisan judgment for Constitutional principles.

These judges, lacking reverence for Constitutional traditions, have little regard for the voters, whether it is expressed through the initiative or through popularly elected legislatures. These judges believe they simply know better than voters or legislatures. They must protect the liberal agenda.

In order to protect the liberal political agenda, it is necessary for these judges to become "activist judges," or to use their position as judge to basically make new law, called judicial legislation under the guise of a "living Constitution." Under the concept of a "living Constitution" the liberals on the Supreme Court in the 1950's and 1960's abandoned the court's traditional role, and with criminal rights cases such as Miranda, in effect made new law circumventing the legislative process.

The best example of judicial legislation came in the abortion decision, Roe v. Wade, when the Court demonstrated that it was an activist arm of the liberal political movement. The central problem in the Court's decision is that questions such as those presented by Roe had always been reserved for legislative bodies.

The abortion and criminal rights cases, judicial legislation demonstrates a lack of reverence for the law, no matter how well-intentioned the justices. Judicial legislation has at least two significant costs. First is in the rule of law, upon which the Republic is contingent. When liberal judges make new laws, the laws take on a degree of uncertainty, here today but gone tomorrow as politics change.

The second problem it destroys democratic self-government. Simply put, when judges are making law from the bench, the people and the legislature are not competent to resolve public policy conflicts. Liberal judges contend that the voters or the legislature would necessarily decide the issues in error. Therefore, instead of being constitutional referees, liberal judges must become active participants in politics and ultimately influence the outcome.

In many cases, courts, by creating Constitutional rights that do not exist, or by invalidating laws or initiatives that do not suit their political agenda, become the rulers, and the legislators are relegated to the role of bureaucrats, to implement these court cases. Bork quite persuasively argues that this is dangerous to our Republic, because it allows an elitist political minority to "displace democratic choice" by the imposition of their legal and political concepts.

Most people understand that this is faulty and they have expressed their disappointment publicly, but, at this time, the liberal judiciary seems to be unmoved. Whether it is Proposition 187 (illegal immigration), Proposition 208 (campaign contributions), Proposition 209 (eliminating quotas in public hiring), the three strikes law, the courts have flouted the public will, and substituted their own political agenda for that of the people and their elected representatives. Our Republic cannot last with this sort of autocratic arrogance in the liberal courts.

When the Chief Justice of the California Supreme Court, Ronald George, wrote the opinion invalidating parental consent for teenage abortions, he was called courageous by the media. Justice Marvin Baxter declared, "The majority's refusal to accord due deference to the Legislature's findings . . . results in a further step toward government by judiciary." Certainly, in matters of normative judgment," wrote Justice Janice Rogers Brown, "no court should be in the position to supplant a society's collective understanding, distilled through experience and expressed in legislative enactments. . . . Legislatures represent the will of the people." The fact that the California Constitution is silent on the issue, and that the law he invalidated was Constitutionally enacted by the legislature and signed by the Governor, was irrelevant. Chief Justice George did not agree with the law, he believed he was right to overturn the law.

California had this same problem with Justice Rose Bird, and her Jerry-Brown-appointed Supreme Court. What the Constitution said was irrelevant, what the judge thinks is all that counted. The judge cannot trust the entire legislature and the Governor. He thinks he knows the right thing to do, and we do not. Therefore, he thinks he should write the rules. He thinks the law enacted by the legislature can't be right, because the legislature is full of politics and compromise. Popularly enacted statutes like three strikes are too harsh, because they limit judges. We voters should know that leftist judges are smarter than the rest of us. To these judges, and their pals in the liberal press, we are a bunch of country bumpkins, not to be trusted, easily deceived and completely unsophisticated.

For liberal judges, the Constitutional concept of judicial review, developed by the Founders, for an orderly constitutional development, is no longer valid. The "living Constitution" means only what the Courts say it does. This idea is dangerous. While the Constitution must remain relevant to modern times, it should also remain a constitution. Judges, like Justice George, who hold the attitude that they can mold the terms of the Constitution, are not its true custodians. Above all virtues, a Justice must have a reverence for the law and trust the people. When a judge loses that reverence and trust, we are relegated to little more than a dictatorship of lawyers. Freedom, liberty and ordered constitutional government requires a restrained judiciary. Those of us who wish to keep our Republic free must insist on it in our vote.

Ray Haynes was first elected to the California State Assembly in 1992. He served in the California State Senate from 1994 to 2002, including as Senate Republican Whip.