Closing the Book on Judicial Activism

After a bruising and extended primary fight, the Republican die has been cast; for better or worse, John McCain appears to be our next nominee.

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As our thoughts turn to the general election, the alignment of the Supreme Court becomes an issue that hinges on November’s results. Thanks to liberal decisions made by the Court over the past thirty-odd years, the culture wars have enflamed public opinion and divided Americans. Debates over gay marriage, abortion, and public expressions of religiosity—at best, deeply controversial—were exacerbated and prolonged by the Supreme Court’s forays into policy making. While the legislative process forges consensus by allowing all voices to be heard, judicial fiat leaves no room for compromise. It is impossible to craft law without extended dialogue, and a great deal of give and take. When social policy is left to the Court, it does not matter whether decisions are made in the spirit of compromise; the first casualty of such decisions is polity. Case in point is Roe v. Wade; Justice Harry Blackmun’s now-controversial decision was not an attempt to impose his will on the entire country—his invocation of the trimester framework was an attempt to forge a compromise between abortion supporters and abortion opponents. Yet, despite Blackmun’s best intentions, Roe cannot be described as anything less than an abuse of the Court’s power and an overstepping of its constitutional bounds.  This is the rotten fruit borne by the seeds of radical judicial interpretation. The postmodern view of the judicial role is often referred to as the belief in a “living Constitution.” According to this view, the Constitution is constantly in need of adjustment and update, much like a computer operating system; regular “patches” are necessary in order to keep things running smoothly. As harmless as this approach may sound, it overlooks the fact that there is already a mechanism for Constitutional change; the amendment process. The Founding Fathers believed that momentous decisions which could shape the future of the nation needed to be handled in such a way that a consensus could be arrived at. This is why Constitutional amendments must be ratified by two thirds of the states, and it is also why lawmaking is the business of an elected legislative body which serves at the favor of its constituents. Thanks to President Bush, the Supreme Court has taken a measured turn back towards judicial restraint and humility with the recent appointments of Chief Justice John Roberts and Justice Samuel Alito. The next president will play an immeasurably important role in determining the trajectory of American jurisprudence over the next few decades. The next appointment could resurrect the flawed thinking that led to judicial disasters such as Roe, or bury it forever.