How judicial activism on the right and left is threatening the Constitution

Judges aren’t supposed to make laws. They settle fights by interpreting them

By Thomas B. Griffith Feb 1, 2021, 10:00pm MST

The United States could have created a monarchy. Just imagine the portraits of George Washington holding a scepter. Or the framers could have created an oligarchy of philosopher-kings, or even a theocracy with clergy creating laws.

But they didn’t.

They framed a Constitution instead, outlining a remarkable — albeit intricate — process for rule-making. The laws of the land wouldn’t come from a king or a priest, but from “We the People” through duly elected representatives.

Strikingly, judges played no role in this lawmaking process. This wasn’t an oversight, but rather a central element of the design.

Judges don’t make laws. They resolve disputes by applying the rules created by “We the People.” Supreme Court Justice Elena Kagan got it just right when, at her own confirmation hearing in 2010, she flatly rejected a senator’s suggestion that there could be some cases in which the judge might rely on her heart.

It’s “law all the way down,” she insisted.

So, when political leaders, judges or pundits treat the judiciary as simply another legislative body but with funny-looking robes, they do the republic great harm. Call it judicial activism, legislating from the bench or just plain bias — all of it undercuts the nation’s faith in the rule of law.

During her confirmation hearing, Justice Amy Coney Barrett was criticized for refusing to share her personal views on hot-button topics such as abortion, immigration and the Affordable Care Act. Many assumed she was simply hiding a controversial right-wing agenda. These assumptions are not only cynical, but they also display a fundamental misunderstanding of a federal judge’s role.

During my own confirmation proceeding in 2005 to the United States Court of Appeals for the District of Columbia Circuit, I received plenty of advice on being a judge. One suggestion came from a colleague who served as a law clerk on both the court I was set to join and the Supreme Court. If anyone knew what it took to be a good judge, I thought, it was surely this friend.

On his first day as a clerk, the judge for whom my friend was working explained how he decided cases. “First,” the judge said, “I learn the facts of the case as best as I can.” People deserve to have a judge who knows their circumstances. “Next,” the judge went on, “I think long and hard about the just result, the fair outcome. Once I’ve figured that out,” he declared, “I look for law that will support my decision.”

That’s how a judge should go about his work, my friend concluded. I thanked him for his counsel, but as I hung up the phone, I vowed to do my best to follow the first part of his advice and completely reject the second part.

As the late professor Herbert Wechsler of Harvard observed, “the deepest problem of our constitutionalism” is when courts function as a “naked power organ.” That happens when judges decide cases based on their own personal politics. This undermines what Yale’s Akhil Amar dubs one of our fundamental liberties: the people’s right to determine the laws by which they’re governed.

This is an important point lost in our current discourse on the role of judges. In 2018, Chief Justice John Roberts took the unusual step of responding to President Donald Trump’s disparagement of a judge’s ruling because he was appointed by his predecessor. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said at the time. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” The chief justice’s rebuke could have just as easily been directed at the Democratic senators who tried to make Barrett’s confirmation into a hearing about the wisdom of the Affordable Care Act.

A recent survey found that nearly two-thirds of Americans believe that Supreme Court justices base their decisions primarily on the law, not on politics. Those who persist in describing judges in partisan terms undermine public confidence in “government of laws and not of men.” Even in the best of times, confidence in the rule of law is fragile. In these times, there’s no question that our political leaders and commentariat must do better — and so must we.

Thomas B. Griffith is a former federal judge of the United States Court of Appeals for the District of Columbia Circuit.

This story appears in the January/February issue of Deseret Magazine. Learn more about how to subscribe.