Adjudication and Legislation

Editor's note. This post was original written in May of this year, but was never published. Enjoy.

Perhaps a better title for the post would have been "why we need judges who won't legislate from the bench", but that just seemed a little too winded. This is an intense subject, full of confusing rhetoric and legal subtleties. Now, as we once again debate of the worthiness of Obama's next supreme court appointee, it is important that we understand what's at stake. True to form, Obama has tapped someone with an elite education and very little experience (sound familiar?). But instead of trying to debate the merits of Elena Kagan's qualifications, I would rather get to the heart of what's important here.

We all learned in middle school that our founding fathers wisely created three distinct branches of government, each having built in checks and balances to ensure none ever get too powerful. The Supreme Court's main purpose in all of this is to provide a final judgement for any case that arises under the Constitution. In a sense, they are the protectors of all the laws of the land, with the highest being the Constitution itself. We need good men and women who love the Constitution and are willing to impartially make judgements, void of any ideological premise, with the sole intent to uphold the Constitution and protect the rights of the people. Unfortunately, such men and women are hard to come by.

Instead of impartial judgement, we tend to see ideological decisions that set precedents for future law. This has turned our high court into a legislative body itself, capable of making rulings that fall outside the text of the Constitution. This is a huge problem. The balance of power has shifted to the courts, and the checks put in place have started to erode. The high courts are appointed, not elected. They serve for life. They can't be voted out. All this was done to ensure impartiality, but none of it works if they start stepping outside the boundary of power they were meant to be limited to.

Take, for example, the proposition 8 in California. This is a textbook example of court decided legislation. The people of California decided by majority vote that marriage is not a right, but rather a privilege which is defined as only one type of unity, that between one man and one woman. The courts of California, however, decided that such a law would be unconstitutional. And while the court has the right to do that, the only way that they can make such a ruling is if the rights of an individual or group of people, under the constitution, have been violated. In this case, the courts were declaring that marriage is indeed a fundamental, constitutionally protected right. The problem is that no where in the constitution does it say that. They effectively changed the law, denied the will of the people, and created a new set of rights outside the constitution. Doesn't that scare you?

Now, fortunately, this was not the Supreme Court. And in the end, the will of the people was confirmed (only after a 2nd vote, however). But the Supreme Court has a long history of making decisions that set precedents for future law. Some people are fine with this. To others, it is troubling. The difference boils down to how you interpret the constitution. It is pretty easy to pick it apart and warp in a way that justifies whatever position you want to take. But I don't think it is a good idea to take such a relativistic approach. The question shouldn't be: what do I think that means to me? Instead, it should be: what did this mean to the men who wrote it? A lot of people will disagree with me on that, but it is the only sure fire way we can look at the Constitution impartially and come to a mutual agreement despite our ideological differences.

If we let the courts get away with too much power, we will be sacrificing our rights and as a people our voice will be lost. We can't let this happen. We can't passively watch Obama or any other President appoint activist judges who are determined to impose their ideology upon the country. The fine line between adjudication and legislation is becoming thinner and more vague each year. And it is not just at the national level either. It starts with local judges abusing their power. Judges that we elect. Of course, if totalitarianism is your thing, then by all means stay the course.