The Constitution describes three branches of government. Each branch holds different inherent powers, with no single branch yielding more power than the others. The founders understood, to a great extent, that power is a slippery slope, and our fallen nature always pushes us to gain more. However, with three branches of government designed to check and balance the power of every other branch, it creates an endless power struggle that keeps the American people in charge of the government. Yet, for years we have seen violations and gradual abolition of these basic truths in all branches of government, with the most guilty being the judiciary. 

What is Judicial Activism?

So what exactly is judicial activism? Put simply, it is when the court abandons its proper role under the Constitution to police the structural limits on government, and instead, institutes personal bias and legislative manipulation to create laws from the bench. This can come in many forms: frequently reversing lower court decisions, justifying future rulings with past misinterpretations, and directly creating legislation from the bench.

Let’s take a look at a few modern examples.

Activism Over Time

In Wallace v. Jaffree in 1985, the Supreme Court ruled that an Alabama law permitting teachers to organize “periods of silence for meditation or silent prayer” violated the Establishment Clause of the 1st Amendment. Initially, the school wanted this time to be for personal reflection or meditation. Even after the state added the prayer wording, no prayer requirements were put in place and no specific religions were endorsed. It was clear that the time was in no way required to be religious, but mainly that of personal reflection however the students best see fit. However, after the state legislature added the religious language, the Supreme Court struck it down as a violation of the Constitution. Cases like this dangerously blur the line between refusing to establish a religion and the constitutionally protected free exercise of religion in a public space by individuals.

In Roe v. Wade in 1973, the Supreme Court ruled in a landmark 7-2 decision that the right to privacy in the 14th Amendment protected a woman’s right to obtain an abortion, eliminating 46 state laws banning or restricting abortions. It defines “state interest” for late-term pregnancy, but essentially gives the full right to get an abortion.

The ruling in Planned Parenthood v. Casey affirmed this ruling, even going a step further. This ruling creates the “undue burden” test to determine if a restriction goes beyond the protected rights according to Roe. The problem with this is an obvious political bias that created new policy from the bench. Here, a law was created from the court, not U.S. Congress or state legislatures, essentially throwing away the 10th Amendment. 

Below is a quote from another Supreme Court case, Washington v. Glucksberg, defining what cases of constitutional law must protect.

Cases of constitutionality must protect fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.

Abortion is not deeply rooted in our history as an essential right, nor is it implicit in ordered liberty. In this case, the concurring justices twisted the meaning and intent behind the words of the Constitution in order to yield their desired outcome.

Also in 1973, the Supreme Court ruled in San Antonio Independent School District v. Rodriguez that the local finance systems of schools do not violate the Constitution even when there are obvious disparities among different socioeconomic areas and their respective schools. This essentially allowed for independent schools to fund their own education, despite the disparity between poorer communities. Even though the Supreme Court ruled this way, the Texas Supreme Court took it into their own hands to rule according to their interpretation of the Texas state constitution. In Edgewood I.S.D. v. Kirby, the Texas Supreme Court held that the school funding system at the time was leading to inherent inequality of education between poorer and more affluent communities. Since then, Texas has struggled with how to fund their schools in an objectively fair way. This is an example of a state government interpreting their own Constitution, allowing them to do things that higher federal courts have ruled against.

In this specific case, Texas is using the 10th amendment to take control of its own education system, which, at its core, is a state issue. However, it is clear that this could set a troubling precedent, where higher state courts use activism and misinterpretations of their state constitution to implement laws. In some cases, these laws could purposefully defy precedents set by higher federal courts.

A Nation at Stake

Judicial activism is an outright abdication of duty. For far too long, we have seen judges expand on previously misinterpreted rulings, take on the role of legislature, and twist the meaning and intent of the words in the U.S. Constitution to fit their desired outcome. It is their duty to interpret the intent of law and to check the power of the other two branches. The judiciary does our entire country a disservice when they ignore their constitutional limitations. When courts begin to treat their subjective policy preferences and political bias as more important than their role of objectively interpreting the original intent of the Constitution, we relinquish the rule of law; and thereby slowly erode the amazing governmental structures of our great nation.

This is only a small fraction of the countless botched court cases. The courts have proven that they do a terrible job of protecting the Constitution, so we must protect it ourselves. Always remember: “The price of freedom is eternal vigilance.”