The Danger of Judicial Activism

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Friday, May 11, 2018


The Constitution describes three branches of government. Each branch has different, inherent powers, with no single branch yielding more power than the others.

The Founding Fathers understood that power is a slippery slope, and one always pushes to gain more and more of it. However, with three branches of government designed to check and balance the power of every other branch, it creates an endless power struggle that keeps We The People in charge of the government, and never the other way around. However, for years we have seen violations and gradual abolition of these basic truths in all forms of government, with the most guilty being the Judicial Branch.

So what is Judicial Activism? Put simply, it is when the Court abandons its proper and essential role under the Constitution to police the structural limits on government. It institutes personal bias and legislative manipulation to create laws from the bench instead. This can come in many forms: reversing lower court decisions frequently, justifying future rulings with past misinterpretations, and directly creating legislation from the bench. Let’s take a look at a few modern examples.

In Wallace v. Jaffree, the Supreme Court ruled that an Alabama law permitting teachers to organize “periods of silence for meditation or silent prayer” violated the Establishment Clause of the First Amendment. Initially, the school wanted this time to be for personal reflection or meditation. Even after the prayer wording was added, no prayer requirements were put in place, no specific religions were endorsed, and it was clear that the time is in no way required to be religious. However, after the state legislature permitted the use of religion, the Supreme Court struck it down as a violation of the Constitution.

Cases like this dangerously blur the line between not establishing a religion, and the free exercise of religion in a public space by individuals.

In Roe v. Wade, the Supreme Court ruled in a landmark 7-2 decision that the right to privacy in the Fourteenth Amendment protected a woman’s right to obtain an abortion, eliminating 46 state laws banning or restricting abortions. It defines “state interest” for late-term pregnancy, but essentially gives the full right to get an abortion.

The ruling in Planned Parenthood v. Casey affirmed this ruling, even going a step further. This ruling creates the “undue burden” test to determine if a restriction goes beyond the protected rights according to Roe. The problem with this is an obvious political bias and the policy implications from the bench. In this, a law was created by the Court, not U.S. Congress or state legislatures.

We have learned from this Court that cases of constitutionality must “protect fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

Abortion is not deeply rooted in our history as an essential right. In this case, the concurring justices twisted the meaning and intent behind the words of the Constitution in order to fit their political agenda and desired outcome.

In San Antonio Independent School District v. Rodriguez, the Supreme Court ruled that local finance systems of schools do not violate the Constitution, even though there are obvious disparities among different socioeconomic areas and their respective school. This essentially allowed for independent schools to fund their own education, despite the disparity between poorer communities.

Even though the Supreme Court ruled this way, the Texas Supreme Court took it into their own hands to rule according to their interpretation of the Texas Constitution. In Edgewood I.S.D v. Kirby, the Texas Supreme Court held that the school funding system at the time was leading to inherent inequality of education between poorer and more affluent communities. Since then, Texas has struggled with how to fund their schools in an objectively equitable way. This is an example of a state government interpreting their own Constitution, allowing them to do things that higher Federal Courts have ruled against. In this specific case, Texas is using the 10th Amendment to take control of its own education system, which technically is a state issue anyway.

It is apparent that this could set a troubling precedent, where higher state courts use activism and misinterpretations of their state Constitution to implement laws. In some cases, these laws could purposefully defy precedents set by higher, Federal Courts.

Judicial Activism is an outright abdication of duty. For far too long, we have seen judges expand on previously misinterpreted rulings, take on the role of legislature and twist the meaning and intent of the words in the U.S. Constitution to fit their desired outcome. It is their duty to interpret original intent and check the power of the other two branches, and they do our entire country a disservice when they ignore their limitations.

When courts begin to treat their subjective policy preferences and political bias as more important than their role of objectively interpreting the original intent of the Constitution, we relinquish ourselves of the rule of law and slowly erode the amazing governmental structures that we have created in this “Grand Experiment” that we call America.


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About Cody Hawkins

The Ohio State University

Cody is a 5th year at The Ohio State University where he is pursuing a degree in Education. He is an intern at the Ohio House of Representatives, and the Treasurer of the Ohio State chapter of Young Americans for Freedom. In his free time, he loves to play sports or musical instruments. He is a die-hard Buckeyes, and Green Bay Packers fan.

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