Commentary
Judicial activism. The role of the democratic legislature. The separation of powers. The creative tensions between the two. They are all substantive issues vitally important to the proper functioning of our body politic.
It is right and proper that those who make the laws are not the interpreters of those laws. So we have our parliaments legislating and the judiciary interpreting. That is the textbook version. The ideal.
In real life, the reality can be very different. The rich English tradition clearly states that the separation of powers between the legislature and the judiciary is non-negotiable.
Nevertheless, we too often witness the judiciary not upholding its oath of office by engaging in what is described as judicial activism, whereby the judge takes it upon himself or herself to interpret the law based on the outcome desired by the judge as opposed to what the law requires.
Too often, our judges act as frustrated legislators, which brings the judicial arm into disrepute by removing the certainty the law should be providing.
In the legal fraternity, there is the description of judges as either “black letter” lawyers or “activists.”
The black letter judge seeks to interpret the law as it is written without any preconceived or personally desired outcome. They apply the law according to precedent and established rules of interpretation, dismissing personal attitudes from their judicial opining and utterances.
The activist, on the other hand, considers the desired outcome and then seeks to provide a rationale to justify that which is considered desirable.
The most notorious case of judicial activism was the ruling in Roe v Wade, in which the U.S. Supreme Court bizarrely found a right to abortion on demand in the founding document of the Constitution.
The tortured finding took away from the States the right to legislate in the vexed area of abortion.
Roe v Wade was always unsustainable as even the most pro-abortion activists had to acknowledge that the ruling stretched credulity in judicial decision-making to way past the breaking point.
Supreme Court on a Roll
Recently, a differently constituted Supreme Court in the United States discarded the myth of Roe v Wade and rightly determined there was no inherent right to abortion implied in the Constitution.The disingenuous interpretation, including by President Joe Biden, that this was somehow an anti-abortion ruling is simply wrong.
If the judges wanted to so rule, they could’ve created a new myth asserting that there was an implied right to life embedded and implied in the Constitution.
They didn’t. They left the matter to individual State legislatures.
The same Supreme Court has been engaging in some more judicial pronunciations of late, seeking to restore the separation of powers and interpreting legislation according to its provisions as opposed to its alleged vibe or some other extraneous consideration.
Backing the right of a Colorado Christian web designer to deny her services for causes with which her religious beliefs conflicted was most welcome in securing the right to freedom of religion and placing a commonsense consideration in the area of discrimination laws.
The web designer did not refuse her services because of the personal attributes of the potential client but because of the nature of the work. The idea that the laws required, indeed forced, a web designer to create speech with which she vehemently disagrees was thankfully rejected.
The three dissenting judges sought to preserve an outcome for a particular group of people without thinking through in a critical fashion the consequences of the full application of their approach.
Should an adamant climate change believer be required to create a website for those with strongly held opposite views? Most people would argue that in the country of the free, that should not be required.
Stepping Away From Judicial Activism
Rejecting the presidential wholesale forgiveness of national education loans was deemed to be beyond the power of the president by the Supreme Court in another case where the application of the black letter law was followed.In that case, the powers under the HEROES Act were being assessed. The Higher Education Opportunities for Students Act allowed for the forgiveness of student loans in narrowly delineated situations.
The Congress saw the wisdom in providing a degree of flexibility. The issue for the Court was whether the HEROES Act was designed to allow for the wholesale forgiveness of loans with real economic consequences or simply on a case-by-case basis.
The court not unreasonably ruled in favour of those opposing the presidential measure on the basis of the “major questions doctrine,” which presumes that the legislature would not delegate issues of major economic or political significance to the president or bureaucrats.
It is still possible to forgive the student loans. It just has to be decided in the correct arm of government, the Congress.
Like abortion. It can still be allowed, but it will need to be done by the democratically elected Legislatures and not the unelected Supreme Court.
Another case where the U.S. Supreme Court has recently cleared up some crooked thinking is in the area of discrimination laws and affirmative action.
The retreat from the undemocratic judicial activism which has infiltrated judicial decision-making in recent times is a very welcome development as it reinstates the separation of powers and ensures each arm of government remains within its boundaries.
The rule of law protects us all, and that requires the judiciary to limit itself and be disciplined, resisting the urge to act as defectors legislators.
The long-term consequences of short-term judicial activism are damaging and corrosive to the confidence people have in their institutions, which is vital to an orderly civil society.
It is to be hoped that the recalibration of judicial interpretation by the U.S. Supreme Court will provide certainty to the law, which is imperative for a well-functioning society.
Australian Courts would do well to follow the lead.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
