On September 4, 2018, the U.S Senate Judiciary Committee began hearings for President Trump’s Supreme Court Nominee Judge Brett M. Kavanaugh. Judge Kavanaugh’s nomination sparked fierce debate among Democratic and Republican lawmakers over the role of a United States Supreme Court Justice. The debate was interrupted by accusations of sexual assault against Kavanaugh by Professor Christine Blasey Ford when the two were in high school. In the end, Ford had no corroboration to her story, and Brett Kavanaugh was confirmed to the United States Supreme Court by a narrow vote of 50-48 in the United States Senate. The result of Kavanagh’s conformation was mind blowing. Left-Wing activists raced over to the Supreme Court chanting ‘OUR COURT OUR COURT” and began banging their fists on the historic doors of the old building. What most people don’t realize is at the core of the outrage and disagreement over Justice Kavanaugh’s conformation and even Justice Gorsuch’s conformation last year are two different views over the proper role of a United States Supreme Court Justice.
There are two types of justices that make up the United States Supreme Court, practitioners of judicial activism and practitioners of judicial restraint. Practitioners of judicial activism favor the expansion of the role of a Supreme Court Justice beyond that of applying the law, but to remake it to fit certain intellectual visions. Practitioners of judicial restraint are Justices who bind themselves to the original meaning of written law and make rulings based on that meaning, not rulings based on the desired outcome of the case. As social theorist and economist Thomas Sowell once wrote, “Those who advocate a greatly expanded latitude for judges to ‘interpret’ laws to suit the presumed necessities or the spirit of the times rather, being bound by what the words meant when the laws were enacted, seem implicitly to assume that activist judges will bend the law in the direction preferred by such advocates- in effect, promote the vision of the anointed. But, judicial activism is a blank check for going in any direction on any issue, depending on the predilections of particular judges.” The blank check that Thomas Sowell describes is the reason why practitioners of judicial activism are harmful to the American Republic.
In the 1950s, Chief Justice Earl Warren used stretched interpretations of the law to outlaw racial segregation in the United States. His rulings were championed because of the social effects they created, but everyone forgets that a century earlier Chief Justice Roger Taney used similar stretched interpretations in the Dred Scott case that asserted that the black man “had no rights which the white man was bound to respect.”In short, activist judges who can change the meaning of written law at a whim can cause serious harm to the American Republic because of the “blank check” of judicial activism.
Another prime example, of judicial activism that has resulted in harmful expansive interpretations of the law is the 1942 case of Wickard v. Filburn. Under the Agriculture Adjustment Act of 1938, the federal government had the power to control the production and distribution of many agricultural products. This power came from the ability of the federal government to regulate interstate commerce under the United States Constitution. In Ohio, the law was applied to a farmer who grew a small portion of wheat for himself and his animals and the federal Department of Agriculture determined that this was more than permitted to be grown and with that dictated to him. The farmer challenged the federal government because the wheat he was growing was not even going into interstate commerce or even intrastate commerce. The case went to the United States Supreme Court, and the court ruled that federal authority could be extended to include production that did not enter interstate commerce. The ruling means virtually anything could be considered interstate commerce and it has become a tool in expanding federal power over the years even though the Tenth Amendment limits the expansion of federal authority.
It is not the job of a Supreme Court Justice to make or change laws. That job goes to lawmakers in Congress. It is the job of a Supreme Court Justice to make rulings based on the original meaning of the statutes as they stand on paper. Justice Antonin Scalia once said, “Words have meaning, and their meaning doesn’t change.” It is meaning that binds judges, who should apply the meaning of the law in their rulings. The proper role of a Justice is to make rulings based on the original meaning of the text not to expand it to what they want it to mean.