January 17, 2007

Now, it is not enough for the courts only to be strong and independent. Judges also must understand their role in our system of limited government.

I am concerned that some have lost sight of the role of the Judicial Branch as the Framers intended it to be.

I do not believe the Framers ever intended for the Judicial Branch ­ the Supreme Court or the lower courts ­ to make policy. It is worth recalling Hamilton's famous words, again from Federalist 78: "The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."

In arguing that states should ratify the Constitution, Hamilton sought to allay the concerns of those who feared that courts would endanger the political accountability of lawmakers or Executive Branch officials. In effect, he said, "Don't worry, courts won't be capable of arrogating to themselves the power of law- or policy-making."

Of course, the power and authority of courts ­ whether to improperly take policymaking power for themselves or to engage in legitimate decision making ­ is dependent upon the weight of their judgment. That is, it depends on their credibility with the public and the other branches of government. Judicial decisions are obeyed, in large part, because the judgment of the federal Judiciary is respected.

But it is perhaps underappreciated that when courts apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and authority of the Judiciary. In so doing, they undermine the rule of law that strengthens our democracy.

In contrast, a judge who humbly understands the role of the courts in our tripartite system of government decides cases based on neutral principles. He generally defers to the judgment of the political branches, and respects precedent ­ the collective wisdom of those who have gone before. In so doing, that judge strengthens respect for the Judiciary, upholds the rule of law, and permits the people ­ through their elected representatives ­ to make choices about the issues of the day.

It is no accident that the person President Bush chose to head the Judiciary, Chief Justice Roberts, made this point in terms all Americans could understand: "Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

When judges uphold laws enacted by Congress and actions taken by Executive Branch officials, they are sending a very clear message to the American people: "You have chosen this path, and it is presumed to be the right one because you have chosen it."

If the American people disagree with a law Congress has enacted or a policy of the Executive Branch, they have the right to vote Congress or the President out of office. That is the method by which the Constitution keeps control in the hands of the people and keeps our limited government limited. It is my strong belief that activist judges who take that power into their own hands do not serve the Constitution or the people well. They fundamentally misunderstand the role of a judge.

I also am concerned about judges who imagine they see everything in society addressed in the Constitution. It is worth remembering that the Constitution is a very brief document. It defines the structure and authority of the federal government and protects a limited list of sacred rights. It does not, and was never intended to, address every legal issue that might arise in our nationÕs history.

Democracy is well-served when the Court says, in effect, "the Constitution simply does not comment on this issue." In contrast, constitutionalizing an issue takes it out of the democratic process. If the people disagree with a court decision based on the law, they have a remedy in the political process. Through their elected representatives, they can change the law.

But once a court declares a law to be unconstitutional or prohibits some agency action on constitutional grounds, it is limiting the options of the people. Such a step should be taken only where it is clear that the Constitution has truly spoken on the issue and forbidden what the political branches have determined to do.

Of course, if a law or an agency action is unconstitutional, then judges, consistent with their oaths of office, should not hesitate to strike it down or prohibit it. But courts should exercise extreme caution. Members of Congress and Executive Branch officials take an oath to uphold the Constitution just as judges do. Courts that rush to invoke the Constitution to strike down the actions of the other branches sell short the wisdom and the prerogatives of the legislature, the President, and the people.

A judge with life tenure who gives his own views on political and policy matters greater weight than the considered viewpoint of the elected representatives of the people, or who believes he alone knows what is the best policy, can make great mischief. The Framers understood this. Hamilton said, "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature."

Activist judges ­ those who on a pretense substitute their own views for the will of the legislatures ­ can find some rationale to support any outcome they desire. They can find in legislative history some quote to support their viewpoint. They can find a footnote in an earlier decision, and extrapolate from that a new principle despite what the language of the law itself says.

But in the end, distorting history or precedent to support a pre-determined outcome weakens the Judiciary, undermines the rule of law, and harms our democracy.

Courts must protect people from the "tyranny of the majority." That is certainly true. But we must also guard against the tyranny that results when unelected activist judgesÑboth on the right and on the leftÑundermine the right of the people to govern themselves.

As we recently have seen, under our system of government, no legislative majority can expect to last forever. And no President can serve more than two terms. As long as the people retain the power, I have faith that they will exercise it prudently. When power is held by a few, however, we face a far greater danger. There is a fundamental difference between the tyranny of the majority and the will of the people.

Congressional majorities do not get to run roughshod over the Constitution, but if at the ballot box the people have decided they favor your policy goals, then you get a chance to set policy. Right now the Democrats control Congress. Where they have the votes to enact laws supporting their policies, they should be free to do so without contradiction from activist judges who disagree with those laws on policy grounds.

Now, just as judges must understand their proper role and strive not to subvert the democratic process, leaders of the political branches should not pass difficult questions to the Judicial Branch because they are unwilling to make tough choices or because they don't have the votes to enact clear language to advance their policy agenda. This far too common occurrence puts the courts in an untenable position. If there is a danger in judges removing policy discussions from the political sphere, then the political branches themselves should avoid encouraging that tendency.