Posted by
Playful Walrus on Tuesday, May 26, 2009 7:17:07 PM
I have repeatedly seen the charge that folks like me consider any court ruling that goes against what we like to be judicial activism.
What do we mean by judicial activism?
Judicial activism the opposite of judicial restraint.
Our Constitution limits government. Our federal government is only supposed to do what it is instructed to do in the Constitution. If we find that the federal government needs new powers, we should grant them by Amendment. In other words, the government is restrained. This includes federal courts. This can also be applied to most, if not all, states and their constitutions, and thus state courts.
When a case or dispute is presented to a court, the first question that should be asked by the court is, "Does this fall under this court’s jurisdiction?"
For example, let's say a minor teenager living with his biological parents thinks his allowance is not high enough. If he tries to take his parents to court for more allowance, the court should say, "This is not our jurisdiction. Your parents have the authority to set your allowance." Maybe a judge thinks the parents are being stingy. Maybe she thinks the parents are being too generous. It doesn’t matter. It is not the court's jurisdiction.
It is not the role of the courts to fix every unfair or wrong thing in society. It is not the role of the courts to make every decision, even in government. Some things fall under the jurisdiction of the legislature, some under the executive (President, Governor, Mayor, etc.), some under the electorate, and some to individuals and their voluntary associations. Some things should remain at the local level, some things at the state level, and other things at the federal level.
Now, the judicial activist either doesn't consider the question, "Does this fall under this court’s jurisdiction?", or the activist too often answers "Yes, it does." The judicial activist strikes down laws not because they really violate the constitution, but because a judge or group of judges doesn't like the law (and someone asked them to strike it down). The judicial activist may have good intentions, but intervenes where he or she shouldn't. While such a person might right a wrong, they are often doing so at the expense of the overall Constitutional balance of power that keeps our government in check.
I'd rather have a Supreme Court of the United States of America stacked with individuals who are personally liberal and rule with judicial restraint, than one stacked with judicial activists who are conservatives. It takes a special kind of person to have access to power, but refrain from exercising it whenever he or she feels like it. We need special people on the SCOTUS, just like we need special people in our other roles of power.
Not everything should be decided by SCOTUS.