Judicial Activism
Often times when a particular party, group, or organization does not receive the ruling they want from the courts, they deride the decisions of federal judges by claiming them to be an act of judicial activism. For example, the claim of judicial activism comes recently from those who support legislative bans on the recognition of gay marriage. This idea of “judicial activism” or “legislating from the bench” is not only petulant, but it is particularly dangerous to a democratic system of government as well.
Those who adopt this fallacious terminology either do not understand or refuse to acknowledge judicial prerogative. If the legislature wanted to pass a law, which was significantly irrespective of people’s rights and disenfranchises a particular group of people in any way, there would be no barrier to stop them without the courts which interpret and issue rulings pertaining to particular laws.
The logic behind the statement of “judicial activism” is incredibly dangerous, for the only logical conclusion is a collective society which legislates away people’s rights if they are divergent from the majority will or opinion, because although laws may be passed by a “majority,” it certainly does not mean it was passed according to people’s rights, only to people’s desires. To disagree with a judge’s opinion and seek an appeal is one thing, but to wholeheartedly disparage it as insignificant and illegitimate is an entirely different situation. To be clear, there are assuredly instances where courts can make questionable rulings, but it is certainly not the majority of cases.
The only reason why people adopt this idea is because they reside in the losing side of an argument. We often hear this espoused from politicians from both sides, such as President Obama (discussing Obamacare), “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress…what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.” Then Republicans, such as Senator John Cornyn, adopted this idea when the Supreme Court ruled it constitutional, “Unelected and serving with lifetime tenure, and substituting their view for the views of the people’s… That’s not the way our democracy is supposed to work.”
In short, one should not claim something as judicial activism just because they don’t get something that they want. Although you may be angry with the court’s decision(s), refusing to recognize their authority on the matter, and the ruling which assuredly follows, is far more dangerous than the issued ruling itself. If a person truly loves democracy and the rule of law, then they will duly realize that the judicial system, judges and courts included, is the most instrumental institution in maintaining the integrity of the law. If a society begins to refuse the authority of the courts, the only mechanism in a democratic society whose sole purpose is to protect people’s rights, the fundamental rule of law disintegrates completely. Laws would mean nothing without the courts which uphold or strike them down. The courts protect individual rights, whereas politicians and legislatures do not necessarily if it is not politically profitable. If the courts don’t rule in your favor, rally people to your cause to make constitutional amendments, or utilize any of the other options granted to you by law. However, if you refuse to recognize the legitimacy of the courts, then be prepared to submit yourself to the tyranny of the majority.