Whenever I hear talking heads on either side of the aisle spout about the threat of “activist judges” legislating from the bench, the legal-minded part of me cringes. Bill Maher jokes that in a world of terrorism and pretenses for war, “activist judges” are the least of our worries, while Sean Hannity says that judges with lifetime tenure can’t be allowed to unaccountably reshape the law as they see fit. I think the truth of the matter falls somewhere in between.

The United States has always subscribed to a common law system of jurisprudence, adopted from the British system from which we derive many of our legal principles. Under that system, laws are adopted through a variety of means (legislative acts, executive orders, constitutional amendments, etc.), and it is the job of the judicial branch – judges – to flesh out the meaning of those laws. That means that simple phraseology used by legislators, such as granting Congress the power to make all laws “necessary and proper” to carry out the powers granted to them (Article I, Sec. 8, Cl. 18 of the US Constitution), gets scrutinized and considered by judges to determine how those standards should be applied. Unless overturned by a higher court, one judge’s interpretation of that law then receives the full weight of law in the future – in essence, it becomes another way of deciding what the law is. It’s always been done this way, and it’s important that this privilege continue. Judges become the final arbiters of how laws are applied because the laws themselves are not written specifically enough to be directed to every applicable case! To do away with judicial interpretation would require a law to be on the books for every conceivable scenario, and even then new, unforeseeable interpretations would still crop up (for example, how the Internet is changing the way we view traditional copyright laws).

So judges need their power to apply the laws in specific cases. The problems arise when they use this interpretive power to make laws where the shoe doesn’t really fit. Abortion is an example of this – framing the abortion of a viable fetus in a woman’s right to liberty or freedom to contract. The judges are in a Catch-22 here, when there is no law on the books applying to the specific situation and yet they are called upon to make a ruling because the case at bar requires it. Most often they do the best they can, but in truly polarizing issues, it’s impossible to keep personal beliefs from creeping in. This problem has been the source of numerous heinous court rulings and the potential for abuse is real. But the solution is neither to dismantle the common law system by neutering judges nor to put the fear of God into them by removing them from office whenever a politically unpopular decision is written.


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