Congress' Power: Can They Curb Judicial Activism?

Judicial activism has been a topic of concern for many, with some scholars calling into question the legitimacy of the federal court system. It refers to judges exceeding their constitutional prerogative to interpret the law and instead imposing their personal views and prejudices. While it is difficult to detect with certainty, judicial activism can have profound consequences, such as undermining the predictability and uniformity of the law and eroding public confidence in the judiciary. In response, Congress has the authority to rein in the federal courts and curb activist judges by restraining its own law-making powers and exercising its constitutional powers. This could include the Senate playing a more active role in the confirmation process to block the appointment of activist judges.

Judicial activism undermines the judiciary

Judicial activism is a judicial philosophy that asserts that courts should go beyond the scope of the law to consider the broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. Judicial activism can be interpreted as judges enforcing their own views of constitutional requirements instead of adhering to the views of other government officials or previous courts.

The unpredictability of judicial activism is another factor that undermines the judiciary. When the Supreme Court rules on a statute, it can introduce ambiguity and make it difficult to predict the true scope of the law. This unpredictability can lead to a breakdown of confidence in the independence of judicial decision-making.

Furthermore, judicial activism can be seen as usurping the power of the elected branches of government and legislatively created agencies, damaging the rule of law and democracy. It can also result in judicial overreach, where the judiciary exceeds its legal authority or jurisdiction and makes decisions that should be made by other branches of government. This can lead to conflicts between the different branches and undermine the separation of powers, which is essential for a healthy democracy.

In conclusion, judicial activism can undermine the judiciary by eroding confidence in the judicial system, distorting the balance of power, introducing unpredictability, usurping the power of other branches of government, and leading to judicial overreach that conflicts with democratic principles.

Congress can block activist judges

Judicial activism is a practice where judges interpret the law based on their personal views and prejudices instead of providing a neutral interpretation of the law. It is considered undemocratic as it shifts the power to make important decisions from the people to the courts. Judicial activism can have far-reaching consequences, such as in the case of Rector of the Holy Trinity Church v. United States, where the Supreme Court's ruling undermined the predictability and uniformity of the law.

Congress can play a crucial role in blocking activist judges and curbing judicial activism. Firstly, Congress can exercise its confirmation authority to block the appointment of activist judges. The Senate Judiciary Committee should thoroughly scrutinize nominees for the federal bench, evaluating their understanding of the judiciary's proper role. By rejecting nominees who demonstrate a tendency towards judicial activism, Congress can prevent activist judges from being appointed in the first place.

Secondly, Congress can restrain its own law-making powers to reduce opportunities for judicial activism. Enacting new federal criminal statutes or creating new federal causes of action can inadvertently provide more scope for judges to interpret the law through their personal lens. By being more cautious in its law-making, Congress can limit the potential for judicial activism.

Additionally, Congress, as a separate and coequal branch of government, can utilize its legislative powers to counter judicial activism. For example, Congress can pass legislation that prohibits federal courts from ruling on certain areas or specific issues. This approach, known as jurisdiction stripping, allows Congress to assert its authority and push back against judicial overreach.

Furthermore, Congress can also seek to amend the Constitution to remedy the impact of judicial activism, particularly when it comes to constitutional interpretation. While this process is deliberately challenging, requiring supermajorities at both federal and state levels, it provides a mechanism to address significant shifts in the balance between government power and individual liberty caused by judicial activism.

Judicial activism shifts the balance of power

Judicial activism has been criticised for shifting the balance of power between the government and individuals. It is also said to undermine the judiciary itself. Judicial activism can be defined as when judges substitute their own view of what the law should be, instead of interpreting what is contained in the constitution and statutes.

The US Constitution was designed to ensure that no one branch of government became too powerful. James Madison wrote in The Federalist Papers that to combine judicial power with executive and legislative authority was "the very definition of tyranny." Thomas Jefferson believed that allowing only the unelected judiciary to interpret the Constitution would lead to judicial supremacy. Judicial activism, therefore, goes against the intentions of the Founding Fathers.

Abraham Lincoln warned that if the Supreme Court's decisions on vital questions affecting the people became irreversible, then the people would have effectively resigned their government into the hands of the judiciary. Judicial activism can thus be seen as a threat to democracy.

Congress has the ability to check judicial activism by passing legislation that prohibits the federal courts from ruling on certain areas. This is known as jurisdiction stripping. Congress can also exercise its confirmation authority to block the appointment of activist judges. However, some argue that it is often Congress that enables judicial activism by enacting new federal criminal statutes or creating new federal causes of action. By restraining its own law-making powers, Congress can help to rein in the federal courts.

Judicial activism harms public policy

Judicial activism has been described as a "great mortal sin" and a usurpation of democracy. It is a practice where judges interpret the law through their personal views and prejudices, instead of simply applying the law as it is written. This has been said to undermine the very foundation of a democratic republic, where elected representatives are meant to decide important issues, and the judiciary's role is to interpret and clarify the law, not make it.

Judicial activism has been accused of harming public policy in several ways. Firstly, it undermines the predictability and uniformity of the law. A judicially active interpretation of the Constitution can shift the dividing line between government power and individual liberty, and this shift can only be remedied by a constitutional amendment, which is a difficult and rarely successful process. This distortion of the balance of power between the branches of government can have far-reaching consequences.

Secondly, judicial activism erodes public confidence in the judiciary, which relies on this confidence for the implementation of its judgments. When judges are seen to be pursuing a political agenda, it threatens the independence of the judiciary and breaks down confidence in the judicial decision-making process.

Additionally, judicial activism takes important social and moral issues out of the democratic process, removing the ability of citizens to shape public policy and depriving them of the political experience and moral education that comes from resolving difficult issues and reaching a social consensus. Judicial activism can also lead to a breakdown in the separation of powers, with the judiciary, the least democratic branch of government, becoming the most powerful.

Finally, judicial activism can result in laws that are inconsistent and difficult to enforce. When judges interpret the law based on their personal views, it can lead to conflicting rulings and create confusion about the true scope of the law. This can make it challenging for individuals and organisations to understand their rights and obligations, potentially leading to further legal disputes and an overall lack of faith in the justice system.

Judicial activism is anti-democratic

Judicial activism is a concept that has been criticised for being anti-democratic. It refers to the practice of judges making rulings based on their personal views and prejudices instead of interpreting what is contained in the Constitution and statutes. This can lead to a shift in the balance of power between the government and individuals, as seen in the case of Rector of the Holy Trinity Church v. United States, where the Supreme Court's decision undermined the predictability and uniformity of the law. Judicial activism can also erode popular confidence in the judiciary, threatening its independence.

The Founding Fathers of the United States, including James Madison and Thomas Jefferson, recognised the dangers of judicial activism, warning that combining judicial power with executive and legislative authority would lead to tyranny and judicial supremacy. Judicial activism can remove important social and moral issues from the democratic process, depriving citizens of the opportunity to shape public policy and engage in moral education through resolving difficult issues.

In defence of judicial activism, some argue that it provides a check and balance on the powers of the majority, ensuring that minority groups are not dominated or oppressed by elective powers. It can also serve as a restraint on democratic majorities, preventing them from acting out of passion and prejudice rather than reasoned deliberation. However, critics argue that judicial activism undermines the democratic process by taking away the power of elected representatives to decide on important issues, leading to a form of "government by judiciary".

While the term "judicial activism" is often used as a pejorative in political rhetoric, it is important to note that it can be applied to judges across the political spectrum. Both liberal and conservative judges may be considered activist, although they tend to differ in their targets for invalidation. Ultimately, the lack of agreement on what constitutes undesirable judicial activism makes it challenging to rein in, and Congress may need to exercise its authority to block the appointment of activist judges and restrain its own law-making powers to curb this practice.

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