With the looming departure of Chief Justice William H. Rehnquist from a heavily divided United States Supreme Court, the stakes are high for President Bush. What sort of Justice will replace Rehnquist? Will he or she be a judicial activist or stick to the original intent of the Constitution? Since the days of Marbury v. Madison, the meaning of judicial review has been a complicated issue in American public life. Over the years, several Justices have used their positions of power to become legislators–overstepping their bounds and creating law in the process.
This judicial overreach has played out most significantly in modern times over the issue of “privacy.” The word privacy is not mentioned once in the Constitution, yet in Griswold v. Connecticut, the Court derived a “zone of privacy,” setting the stage for the monumental decision in Roe v. Wade establishing a right to abortion. According to Planned Parenthood, “This view of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” But the scope of the abortion right is an issue best left to the people, and the assertion of a woman’s right cannot be absolute given the presence of another life (a fetal life) that is also the bearer of rights.
Such misguided judicial activism has consequences beyond abortion. Some state supreme courts, such as the Massachusetts Supreme Judicial Court, have been using this philosophy of judicial activism to guide their decisions on a range of issues, most notably regarding the nature of marriage. Rather than interpret the law, Judges have been using their own moral compasses to create laws in their own ideological image.
President Bush and Governor Mitt Romney have both criticized the judicial activism that legalized same sex marriage in Massachusetts. Both have called for a federal constitutional amendment defining marriage exclusively as the union of one man and one woman. This would certainly be an effective means to fight the battle; the war, however, may require something of a larger scale.
As President Bush begins to think about Rehnquist’s replacement, he should look to find a Justice who will accept his proper place within the system of checks and balances as an interpreter of the law and “check” his own moral agenda at the door. As Governor Romney has stated: “Those of us who appoint judges should look for individuals who will interpret the Constitution and the laws of the land strictly and will not branch off on their own social agenda for something that they may choose to promulgate. That’s the job of the Legislature, to decide what the social direction of our country will be. The Legislature makes laws, the courts should interpret them, and I think our Supreme Judicial Court went beyond that boundary.”
As citizens, we elect our president, our congressmen, and our senators. We engage in public debate and seek to govern ourselves. But our democratic system will falter if our justices start making law by fiat. The age of judicial activism must end; true democracy must flourish again.