The Supreme Court and Judicial Activism
Judgment is a concept established by God. Genesis displays the first account of judgment, whereby “God said, ‘Let there be light,’ and there was light. And God saw that the light was good. And God separated the light from the darkness. God called the light Day, and the darkness he called Night. And there was evening and there was morning, the first day. Genesis 1:3-5 (ESV). A clear division of light and dark was formed on the first day, whereby God’s natural law was ratified, creating a reference between good and evil.
While the concept of light is visual here on earth, the word light extends far beyond its worldly capacities. God’s separation of light and dark also suggests the divisions of good and evil; later leading to the inherited depravity in man. Thus, judgment requires the stewardship of impartiality, and the reverence of God’s judicial precedent.
Since the creation of time, the execution of judgment has remained consistent in its practice. However, malevolent entities within the judiciary have eroded the concept of impartial justice. Looking back to the Founding Fathers, it is clear that the judiciary was to play a limited role in government; checked by the executive and the legislature. But the modern judiciary has overstepped its sphere of authority, bleeding into other federal jurisdictions.
Article III of the U.S. Constitution grants the judiciary its authority, while federally limiting its jurisdiction. Article III, Section 1 reads, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The next sentence of Article III describes judicial tenure contingent on good behavior; that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
The Role of the Courts
The role of American courts was first addressed in the Judiciary Act of 1789, whereby Congress “established with great particularity a limited jurisdiction for the district and circuit courts, gave the Supreme Court the original jurisdiction provided for in the Constitution, and granted the Court appellate jurisdiction in cases from the Federal circuit courts and from the state courts where those court ruling had rejected Federal claims,” (Archives).
The Judiciary Act of 1789 was signed by President George Washington, signifying a cohesive understanding of both the limited jurisdiction of the courts and the deference of lower trial courts to cases determined by the Supreme Court. This action produced America’s first judicial precedent, following the ratification of the U.S. Constitution.
Judicial Review
In 1801, Second U.S. President John Adams, upon the exit of his presidency issued Justice William Marbury “a commission as justice of the peace,” (Archives). The newly appointed Secretary of State, James Madison, “refused to deliver it,” (Archives). As a result, William Marbury sued James Madison, resulting in Marbury v. Madison, (1803). Here, Chief Justice John Marshall penned the famous words “A Law repugnant to the Constitution is void,” (Archives). Chief Justice John Marshall’s ruling set a binding precedent, producing the concept of Judicial Review.
The National Archives, speaking on Judicial Review, cites that “[n]othing stated in the Constitution gave the Court this specific power,” (Archivews). “Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.”
Judges possess judicial power, or, “[t]he authority vested in the courts and judges to hear and decide cases and to make binding judgments on them;” (Garner, B., p. 1012). Moreover, judges must produce (1) impartial judgment, (2) exercise judicial restraint; (3) avoid judicial activism, and (4) build an immunity to judgitis.
Founding Father Alexander Hamilton warned of the dangers of an unchecked judiciary in the Federalist Papers, writing in the Federalist No. 78 that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments;” (Hamilton, A., p. 402, 403).
The Heritage Foundation reports that, “over time, the Supreme Court has grabbed power by declaring that ‘the federal judiciary is supreme in the exposition of the law of the Constitution.’” (Heritage). Heritage notes that “[l]iberal activist Justice William Brennan famously said that ‘With five votes you can do anything around here,’” (Heritage).
Black’s Law Dictionary defines the word judgment as “the mental faculty of decision making . . . that causes one to do or say certain things at certain times, such as exercising one’s own discretion or advising others;” (Garner, B., p. 1007). The exercise of judgment produces a specific level of efficiency.
Judgment of the Judiciary
Judgment can take one of two forms: judicial activism or judicial restraint.
Black’s Law Dictionary defines the term Judicial Activism as “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions,” (Garner, B., p.1010). Further Black’s Law adds “usu. with the suggest that adherents of this philosophy tend to find constitutional violations and are willing to ignore governing texts and precedents,” (Garner, B., p. 1010). Whereas Judicial Review, is “[a] court’s power to review the actions of other branches or level of government; esp., actions as being unconstitutional,” (Garner, B., p. 1013); judicial activism undermines the court’s impartial adjudication, and directly opposes the Framers’ intentions for limited government.
Unlike the Founding Fathers’ intentions for America’s Constitutional Republic; “[t]he Supreme Court has even gone so far as to declare that its decisions that interpret the Constitution are the supreme law of the land,” (Heritage). But, “[t]he federal courts have not only grabbed power. They have also changed how judges carry out one of the core function of the judiciary: interpreting laws,” (Heritage).
Judicial activists are prone to developing a terminal illness, known as judgitis. Black’s Law defines the word Judgitis as, “[a]n emotional disequilibrium that occurs in the mind of a judge who confuses the trappings of judicial proceedings with his or her own personal grandeur,” (Garner, B., 1007). Any judge suffering from judgitis displays symptoms like “the self-important condescension to which certain emotionally insecure judges are susceptible,” (Garner, B., 1007). Long-term untreated judgitis increases the likelihood of Judicial Divas are “any egotistical judge who seems to crave attention and sycophancy,” (Garner, B., p. 1012).
Examples of Judicial Activism
Examples of judicial activism resulting from landmark Supreme Court cases include;
Dred Scott v. Sandford, (1857); remedied by the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution.
One of the most disgraceful acts of judicial activism was the Supreme Court’s ruling in Dred Scott v. Sanford, whereby the Court decreed (1) slaves were property; (2) the Missouri Compromise was Unconstitutional; (3) and slaveowners were entitled to reciprocity should any attempt be made to free African-Americans from their slavery.
In 1857, the Supreme Court held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves, whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court,” (Oyez). Further, Justice Taney, overstepping the Supreme Court’s judicial boundaries, and into legislature, wrote that “the Missouri Compromise of 1820 was unconstitutional” and thus prevented “Congress from freeing slaves within Federal territories,” (Oyez). Worse, Justice Taney declared “slaves were property under the Fifth Amendment,” denouncing any attempt to deprive “owners” of their “property” by legal emancipation, (Oyez).
To remedy this judicial atrocity, Congress passed the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution.
Plessy v. Ferguson, (1896); remedied by Brown v. Board of Education of Topeka, (1953)
In 1896, the Supreme Court ruled in a 7–to–1 decision that segregation was Constitutional. This marked an egregious move of the Supreme Court Justices—taking the role of the legislature in creating fallacious sanctions in the name of judicial activism and culture.
In 1892, Homer Plessy, an 87.5% Caucasian man, technically 12.5% Black under Louisiana law, participated in a sit-in; where he “was told to vacate the whites-only car, he refused and was arrested,” (Oyez). Homer Plessy became the plaintiff in his appeal. Next, Plessy drafted a writ of certiorari to the Supreme Court, who chose to hear the case. The Court found that separate accommodations for different races was Constitutional.
The only impartial Justice—Justice John Marshall Harlan—knew the Framers’ intention for the Constitutional Republic. Justice Harlan was raised Presbyterian, and whose adopted brother Robert James Harlan was the multi-racial son of an emancipated enslaved woman, (SupremeCourtHistory). Justice Harlan, dissenting, wrote “the Constitution was color-blind and that the United States had no class system. Accordingly, all citizens should have equal access to civil rights.” Justice Brewer did not participate in the vote “[b]ecause of the untimely death of his daughter,” (Marquette).
Nowhere in the U.S. Constitution, nor in Scripture does it suggest that men are to divided by any classification; especially race. The Supreme Court Justices utilized judicial activism to divide citizens into groups based on their own depraved worldly perspectives.
The Supreme Court’s detrimental ruling persisted until 1953 whereby Brown v. Board of Education of Topeka, (1953) corrected the previous instance of imposed judicial activism. In Brown v. Board, the Supreme Court held that “’separate but equal’ facilities are inherently unequal and violate the protections of the Equal Protection Clause of the Fourteenth Amendment,” (Oyez). The Court’s ruling returned the law to the Founding Father’s original intentions, where it has rightly remained a central pillar of American society and tradition.
Roe v. Wade, (1973); remedied by Planned Parenthood v. Casey, (1992), and Dobbs v. Jackson Women's Health Organization, (2021)
In 1973, the Supreme Court ruled in Roe. v. Wade in a 7–to–2 decision that the right to abortion was a Constitutional right. Their ruling set a federal precedent that would nationally adjudicate abortion to be a natural right. But the case itself was based on deception, as Norma McCorvey lied under oath about being raped. Moreover, the Supreme Court supplanted their own interpretation of the Constitution’s guarantee of inherent rights, exploiting its authority for their advantage. The Court’s ruling undermined the Founding tradition of the Supreme Court sourcing their rulings based on precedent and common law. Instead, the Supreme Court acquiesced to the demands and pressure of culture.
The Supreme Court’s judicial action of 1973 created a civic disparity whereby states were mandated to comply with the federal mandate for abortion. Moreover, “[t]he decision in Roe faced a great deal of controversy, and 46 states needed to change their abortion laws as a result of the holding,” (LII). In 1992, although the Supreme Court noted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), held that “[a] person retains the right to have an abortion, established by Roe v. Wade,” it decreed that “the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk,” (Justia).
Nearly half a century later, the Supreme Court corrected their previous mistake in Dobbs v. Jackson Women's Health Organization, (2021); ruling “the Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion” (Justia). The Founding Fathers did not intend to nationally regulate the right to abortion; nor is it found in our nation’s history or tradition—nor English common law, nor natural law, both where American law originates.
Austin v. Michigan State Chamber of Commerce and McConnell v. FEC, (2002); remedied by Citizens United v. FEC, (2010)
In 1990, the Supreme Court imposed judicial activism, ruling in Austin v. Michigan State Chamber of Commerce, (2002), “that a Michigan state law prohibiting independent expenditures by corporations was constitutional,” (FEC).
In 2002, the Court ruled in McConnell v. FEC, (2002) in a 5–to–4 decision, that free speech “justified by the government's legitimate interest” in “actual corruption” and “the appearance of corruption,” (Oyez). Thus, it declared that it was Constitutional to ban “electioneering communications” or “any broadcast, cable or satellite communication that refers to a clearly identified federal candidate, is publicly distributed within 30 days of a primary or 60 days of a general election and is targeted to the relevant electorate,” (FEC).
The Senate’s Bipartisan Campaign Reform Act of 2002 sought to reform campaign financing. Three controversial provisions included a ban on soft money; limiting on advertising 60 days before an election; and restricted political parties from funding campaign advertisements.
But Free Speech is an inherent human right given by God, and cannot be regulated by government. The First Amendment guarantees that the government acknowledge the right to free speech. There is no enumerated nor implied justification for government intervention on the Constitution’s guaranteed First Amendment right.
In 2010, the Supreme Court ruled in Citizens United v. Federal Election Commission, (2010) nullifying the ban on electioneering communications produced under McConnell v. FEC, (2002) and the limit on campaign financings supported by Austin v. Michigan State Chamber of Commerce, (2002).
But America’s Founders did not consider imposing a limit on electioneering communications, nor limit its financing; as “[h]istorically, not much money was needed to run campaigns,” (Gardner & Charles, p. 710). Therefore, it is erroneous and unconstitutional for the Supreme Court to impose judicial activism to legislate campaign financing laws or the circumstances of electioneering communications. The Founding Fathers were clear that the judiciary was limited to its role—bound within the jurisdiction defined under Article III.
Obergefell v. Hodges, (2015)
In 2015, the Supreme Court ruled in, Obergefell v. Hodges, 576 U.S. 644 (2015), in a 5–to–4 decision that “the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects,” (Oyez). This instance of Judicial Activism again placed the Supreme Court in the position of Congress. Further, the nationalization of laws without Congressional oversight leads to broadly set precedent—directly impacting state rights.
Nowhere in America’s history or tradition, nor in Scripture or English common law does it advocate homosexual marriage to be an inherent natural right. The concept of marriage is specific to its creator. The oldest institution of marriage that exists is found in the Bible, (Gen 2:22–25; Heb 13:4). An important aspect of Scripture is that faith cannot be forced; thus the inversion of a federal ban on homosexual marriage is also outside of the sphere of authority of Congress. The specificities of marriage should be decided by the States, as indicated by the Tenth Amendment.
Biblical Applicability
On one hand, judicial activism opposes natural law. As it is written in the book of James, “[w]hen you judge the law, you are not keeping it, but sitting in judgment on it,” (James 4:11; NIV). American government was designed to be an impartial body of laws, not a subjective body of men. Nor was America’s government established with the intentions of producing Constitutional revision without “a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures,” (Archives). Congress and the ratification of an Amendment to the Constitution. Thus, “God alone, who gave the law, is the Judge. He alone has the power to save or to destroy. So what right do you have to judge your neighbor?” (James 4:12; NLT).
On the other hand, judicial restraint comports with Scripture, specifically whereby Jesus decreed, “[d]o not judge by appearances, but judge with right judgment,” (John 7:24; ESV). In the Bible indentured servitude was a personal decision. Today, public service remains a self-imposed obligation. Thus, judges are public servants. The Gospel reveals a servant’s duty; “[s]o you also, when you have done all that you were commanded, say, ‘We are unworthy servants; we have only done what was our duty,’” (Luke 17:10; ESV). Public servants should not invest their personal opinions into objective matters, instead remaining humble and judicial in their positions.
Conclusion
The Constitution is a static, unchanging document that needn’t be reimagined by the Supreme Court. The Founding Fathers were clear in their establishment of a separation of powers, to the extent that they incorporated the structure of government into an unchanging document, thereby preserving their intentions unto posterity. Judicial activism poses a detriment to the delicate separation of powers originally established by the Framers. Despite the diversity of America, law is colorblind, and the Supreme Court is obligated to remain impartial in its judgment. The Court does not have the Constitutional authority to create new laws under by judicial interpretation. To do so overtly neglects the longstanding legal tradition of the judiciary, and omits the invocation of objective impartial principles that allow for America’s consistent union—despite its plurality and the individuality of the states.
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