The dangers of judicial activism

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Senate Minority Leader Sen. Chuck Schumer of N.Y., walks on Capitol Hill in Washington, Tuesday, March 10, 2020. (AP Photo/Susan Walsh)

Senate Minority Leader Sen. Chuck Schumer of N.Y., walks on Capitol Hill in Washington, Tuesday, March 10, 2020. (AP Photo/Susan Walsh)

Last week, Senate Minority Leader Chuck Schumer (D-NY) rallied against the Supreme Court’s recent decision to hear an abortion case.  

“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price!” Schumer wailed. “You won’t know what hit you if you go forward with these awful decisions.”  

Raving before a raucous pro-choice crowd, Schumer did something politically foolish: He reminded Americans how modern liberals view the Supreme Court — and the independent judiciary in general.

For decades, liberals have been bullies with regard to the Court, threatening, smearing and gaming the judiciary in order to win political battles they lost in Congress. In 1973, the Court, packed with liberal activist justices, read into the Constitution a nonexistent constitutional right to abortion by stretching the precedent set in Griswold v. Connecticut, which established the right to privacy. In 2015, the Court again took matters into its own hands, bypassing the legislature and handing down a dictate from on high legalizing same-sex marriage with no constitutional grounds for doing so.  

When President George W. Bush nominated Miguel Estrada for the D.C. Circuit in 2001, Senate Democrats filibustered to kill the nomination in order to prevent the GOP from confirming to the court the first Hispanic judge in history, according to leaked internal memos. On the back of Sen. Ted Kennedy’s despicable “Robert Bork’s America” speech in 1987, they were successful as well in killing the nomination of Judge Bork by character assassination. In 1991, Senate Democrats ran wild with meritless accusations of sexual impropriety against Justice Clarence Thomas in the same manner which they did while destroying Justice Brett Kavanaugh in 2018. 

This all boils down to a contest between two competing ideologies regarding the interpretation of the Constitution. There is originalism, the belief that the Constitution must be interpreted as written in accordance with the understanding of those who wrote it; and then there is the “living document” theory, the belief that the Constitution evolves with the times and, therefore, justices should have the flexibility to interpret it accordingly — without having it amended first. The problem with the latter approach, embraced by most all liberal justices and those who promote them, is that it ignores the amendment process, the existence of which suggests that the Constitution is, in fact, equipped to evolve with the times — but that it ought to be applied as written with any changes being made by amendment, rather than at the discretion of nine justices and their respective political and social beliefs.  

But, politically, it is far more difficult to elicit approval from two-thirds of both the U.S. House and Senate as well as three-quarters of state legislatures than from five justices on the Supreme Court, which is the crux of the matter. The living document approach opens the Court up for political corruption and leaves the bench susceptible to political pressure. Instead of merely applying the law as intended, the Court begins to make law. If lawmakers cannot pass certain bills in Congress, they utilize the Court as an alternative legislature, one unable to be directly held accountable by voters. Schumer’s rant last week is a reminder of the purpose attributed to the judiciary by liberals.  

So, what can be done about this? First, Congress should censure Schumer. Then, we should understand that Schumer’s threatening was not out of line by the standards of his party. Democrats have been using the judiciary to fight their political battles for decades. The only way to preserve the integrity of the Court is to fight back against the erosion of its principal function. Americans must elect political leaders committed to constitutional originalism who will nominate, confirm and defend judges intent on upholding and applying the Constitution as written — and making alterations through the democratic amendment process rather than by judicial decree.  

We must also realize that the sword cuts both ways. The same Court which sidestepped the legislature in favor of coveted abortion rights also once ruled in Dred Scott v. Sandford that black Americans were not people and in favor of Japanese internment during World War II in Korematsu v. United States. These evils result from justices abandoning the originalist approach and infusing their adjudication with personal and political inclinations or prejudices. It can take decades to overturn a Supreme Court ruling, and Americans suffer during the interim. In an election year, Schumer’s threats against the Court should remain with voters as they determine which ideology will define the judiciary for the foreseeable future. Rights and freedoms depend on it.  


Kevin Catapano is a weekly columnist for The Daily Campus. He can be reached via email at kevin.catapano@uconn.edu.

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