Issues Tearing Our Nation's Fabric The Center for Reclaiming America

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Judicial Activism
Chapter Fourteen

For more than fifty years the United States federal courts, courts of appeals, and the Supreme Court have radically changed the role of the judiciary in this country through the systematic reinterpretation of the Constitution and by disregarding the will of the people in dozens of politically charged cases. Liberal imbalances in the courts have placed the principle of "checks and balances" at risk and, in effect, have handed over the government of the nation to what many now refer to as the "imperial judiciary."

Examples of heavy-handed judicial activism are easy to find: In a 1995 state-wide referendum in Colorado, voters passed Amendment 2, which held that while homosexuals are entitled to full and equal protection under the law, they are not entitled to "special status" under the law. However, a state district judge denied the will of the people and overturned the election results. His decision was later upheld by the Supreme Court which, in Romer v. Evans, accused the voters of Colorado of animosity toward homosexuals.

In California a federal judge reversed the result of the referendum by which voters passed Proposition 187, which denies expensive social services to illegal aliens; still another federal judge overruled the vote by which California voters passed Proposition 209 to eliminate "affirmative action" at the University of California. When the citizens of Missouri voted down a proposed tax increase, a state Supreme Court ordered that the tax be levied anyway; and a federal judge in San Antonio, Texas, threw out the ballots of the county’s military personnel in order to block a duly elected Republican sheriff and a Republican county commissioner from taking their offices.

For five decades liberal federal judges and Supreme Court justices—such as Black, Warren, Douglas, Burger, Blackmun, Marshall, and Ginsburg—have reversed the role of the judiciary and arrogated to themselves the right to reinterpret the United States Constitution, to overrule the will of the people, and to establish with willful intent—what Judge Robert Bork has referred to as a "judicial oligarchy"—that is, a government headed by a small group of powerful elites.

Tossing Out the Constitution

Consider the consequences of the Supreme Court under Chief Justice Earl Warren whose decisions in Brown v. Board of Education led to a tragically flawed program of mandatory busing to achieve racial balance; the Miranda decision, which required that persons suspected of a crime must have their rights read to them prior to arrest; or Engle v. Vitale, which ended prayer in the schools, and Abington v. Schempp, which ended Bible reading in the schools.

Or consider the exaggerated misreading of constitutional intent by Justice Harry Blackmun in the Roe v. Wade decision that legalized unrestricted abortion-on-demand and, subsequently, the killing of 35 million pre-born infants in the womb. By any standard, the courts’ record of imposing their will upon the nation repeatedly and consistently in a manner that is contrary to the will of the people and the Constitution of the United States is shocking and should elicit a universal cry of alarm.

For a time many people thought that if Presidents Reagan and Bush could appoint enough conservative justices to the Bench, there would be a change of balance in the Court and sanity might be restored. That did not happen. With the exception of Justices Scalia and Thomas, who have struggled against mounting pressures to maintain constitutional authority, the members of the Court rule with little concern for other authority. The high court, as Judge Robert Bork has illustrated in his writings, "is impervious to arguments about its proper behavior."

"The illegitimacy of the Court’s departure from the Constitution," says Bork,

is underscored by the fact that no Justice has ever attempted a justification of the practice. At most, opinions have offered, as if it solved something, the observation that the Court has never felt its power confined to the intended meaning of the Constitution. True enough, but a long habit of abuse of authority does not make the abuse legitimate. That is particularly so when the representative branches of government have no effective way of resisting the Court’s depredations (Robert Bork, "Our Judicial Oligarchy," First Things, Nov. 1996).

The issues favored by the courts almost always err on the side of "liberty without restraint," while religious principles and traditions are quickly dismissed. In 1980 the Supreme Court ruled that the Ten Commandments could not be posted in schools because it could be dangerous to children. Such a poster, the justices ruled, ". . . may induce children to read, meditate upon, perhaps to venerate and to obey the commandments."

A battle began brewing in Alabama in 1995 when Judge Roy Moore refused to remove the Ten Commandments from his courtroom wall or to refrain from opening jury-organizing sessions with prayer. The attempt by higher courts to strip virtue, tradition, and religious values from the people has touched a nerve and may be reaching the point where even those who would prefer to wait and watch may be waking up to the risks.

"A Band of Outlaws"

Writing about the liberal social agenda of the justices, columnist George Will referred to them as "our robed masters." Lord Acton’s often repeated maxim that "Power corrupts, and absolute power corrupts absolutely" applies. Bork points out that any band of men and women who use their position and authority to create and enforce rules upon the nation on the basis of their personal, idiosyncratic, and politically correct views, contrary to the voice of the people, have not only violated the guiding principles of the Constitution but have made themselves "a band of outlaws."

Article III, Section 1 of the U.S. Constitution states: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour," meaning that justices and judges at any level who misuse their office for corrupt or personal gain or for espousing judgments contrary to the constitutional function and the will of the nation may be impeached by Congress.

Chief Justice John Marshall, during impeachment hearings of Justice Samuel Chase for arbitrary use of judicial powers, wrote: "a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment." Earlier, George Mason, a framer of the Constitution, had said that "attempts to subvert the Constitution" were always grounds for impeachment; and Alexander Hamilton added that any "violation of some public trust" could bring about impeachment.

Thomas Jefferson said:

The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.

Regardless of one’s view of judicial authority, it must be apparent that the Founders did not intend for judges to rule the nation, to promote their own civil agenda, or to overrule state and local governing bodies exercising their democratic authority.

While still serving in Congress, President Gerald Ford had sought impeachment of ultra-liberal Supreme Court Justice William O. Douglas. "An impeachable offense," he said, "is whatever a majority of the House of Representatives considers it to be at a given moment in history." And he added that, "conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office."

Is it possible that conservatives in Congress, supported by the conservative majority in the nation, might have the strength of purpose to consider calling the judiciary to task? That remains to be seen.

Rep. Tom DeLay of Texas, Majority Whip of the House of Representatives, said in an April 3, 1997, letter to the New York Times:

I advocate impeaching judges who consistently ignore their constitutional role, violate their oath of office and breach the separation of powers. The Framers provided the tool of impeachment to keep the power of the judiciary in check. It is a tool Congress should explore using.

The Congressman’s point is well taken. The Founders did not intend life tenure for federal judges to saddle us with a judicial oligarchy. In our constitutional system of checks and balances, both the legislative and executive branches are accountable to the voters, thanks to frequent elections. If we expect to reverse the fifty-year trend of judicial tyranny in this country, then judges must also be held accountable by the Senate’s "Advice and Consent" power to withhold confirmation, and by the House’s power to impeach judges for lack of "good Behaviour."

A Better Way

In the new book, Guilty: The Collapse of Criminal Justice, New York Judge Harold J. Rothwax describes how corrupt lawyers, activist courts, the liberalized appeals process, and especially the Supreme Court, have combined to wreck not only constitutional law, but the criminal justice system, as well. Rothwax proposes several sweeping changes to the justice system: limiting the rights of the accused during investigation, overturning the Miranda decision, limiting the challenging of jurors and the "dumbing down" of juries. Whether by impeachment, by action of Congress, or by self-imposed judicial reform, change is mandatory.

The Bible speaks of the importance of justice and the rule of law from beginning to end. The children of Israel were taught to select wise judges who would rule according to law and not pervert justice.

You shall appoint judges and officers . . . and they shall judge the people with just judgment. You shall not pervert justice; you shall not show partiality, nor take a bribe, for a bribe blinds the eyes of the wise and twists the words of the righteous (Deuteronomy 16:18–19).

Through Isaiah, God told the people: "Learn to do good; Seek justice, Rebuke the oppressor; Defend the fatherless, Plead for the widow" (Isaiah 1:17). But earlier, Moses had been warned: "You shall not follow a crowd to do evil; nor shall you testify in a dispute so as to turn aside after many to pervert justice." And he was warned: "You shall not show partiality to a poor man in his dispute" (Exodus 23:2–3). How often have our own courts been guilty of such failings?

Jesus, the righteous Judge, the Son of Man who will come to judge the world, holds each of us responsible for maintaining justice and mercy. Ultimately, He will bring law and order to the nations. In the meantime, this is an area where Christians need to become engaged. No other area is so underrepresented by believers today. But if you want to make a real difference for future generations, this is a campaign in need of volunteers.

You can contact these organizations:

WallBuilders
P.O. Box 397
Aledo, TX 76008
(817) 441-6044

Judicial Selection Monitoring Project

717 Second St., NE
Washington, D.C. 2002
(202) 546-3000

For further reading:

David Barton. Original Intent. Aledo, Texas: WallBuilders, 1996.
Robert H. Bork. The Tempting of America: The Political Seduction of the Law. New York: Touchstone Books, 1991.
Jean Bethke Elshtain. Democracy on Trial. New York: Basic Books, 1994.
Harold J. Rothwax. Guilty: The Collapse of Criminal Justice. New York: Random House, 1996.

On the World Wide Web:

WallBuilders: http://www.christiananswers.net/wall/wbreport.html
Judicial Selection Monitoring Project: http://www.freecongress.org/jsmp/

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Copyright 1997, Coral Ridge Ministries. All rights reserved.