Why judicial activism is unconstitutional

With President Obama’s nomination of Judge Sonia Sotomayor to fill the seat of retiring Justice David Souter, we will again have the opportunity during the confirmation process to consider the proper role of the judicial branch under our constitutional system.

This debate usually centers between the two leading interpretations of judicial review: Judicial Activism and Originalism. Already many proponents of an activist judiciary are complementing the nomination as they support a judiciary that is actively making public policy. Most activists support the judiciary making public policy when they have been unable to make it through the appropriate legislative branches at the state or national level.

While participating on a discussion panel at Duke Law School in 2005, Judge Sotomayor sarcastically responded to a question about the courts in the following way: “Court of Appeals is where policy is made.” Despite her half-hearted disclaimer, mocking any critique of judicial activism, it is clear that Judge Sotomayor has no problem when the courts make public policy.

Defenders of judicial activism argue that there is not a clear prohibition against it and that the Constitution seems rather vague concerning the power of judicial. While Article III may not be as explicit as supporters of judicial activism might require in order to curtail their adventures in “legislating from the bench”; they are of course ignoring the most obvious limitation of judicial law-making: Article I, Section 1 of the Constitution:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Our Founders could not have been more explicit: All legislative Powers! Policy making is law making. That power resides exclusively with the Legislative Branch in spite of what Judge Sotomayor may prefer. There is no ambiguity, only dishonest and intentional ignorance of the text to suggest otherwise. There is no other explanation for the argument supporting judicial activism.

One final point: the oath that judges take upon being seated on the bench:

“I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.”

There isn’t any room for activism, nor “empathy” for favored groups here in this oath. Only impartial, detached, and consistent application of the laws.

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